FOSTER 

iNO, 


UCSB   LIBRARY 


STATUTORY  TOBTS 


IN 


MASSACHUSETTS. 


STATUTORY  TORTS 


IN 


MASSACHUSETTS. 


STATUTORY  TORTS 


MASSACHUSETTS. 


BY 

WATERMAN   L.  WILLIAMS, 

OF    THE    SUFFOLK    BAR. 


BOSTON: 
LITTLE,  BROWN,  AND  COMPANY. 

1899. 


Copyright,  1899, 
BY  LITTLE,  BROWN,  AND  COMPANY. 


All  rights  reserved. 


JOHN  WILSON  AND  SON,  CAMBRIDGE,  U.S.A. 


CONTENTS. 


Page 

TABLE  OF  CASES     . xiii 

TABLE  OF  STATUTES xlvii 

PART   I. 
THE  LIABILITY  OF   MUNICIPAL    CORPORATIONS. 

§  1.  The  source  of  the  liability 2 

2.  The  extent  of  the  liability 4 

3.  The  construction  of  the  statute  imposing  it 5 

4.  The  liability  for  death  and  personal  injury  independent .  6 

5.  The  doctrine  of  contributory  negligence 6 

6.  The  plaintiff's  physical  condition 9 

7.  The  plaintiff's  knowledge  of  the  existence  of  the  defect  .  10 

8.  The  plaintiff's  unlawful  acts 11 

9.  Volenti  non  fit  injuria 12 

10.  The  plaintiff's  control  over  his  horse 13 

11.  The  plaintiff  must  be  a  traveller 15 

12.  The  plaintiff's  motive  for  travelling 17 

13.  The  mode  of  coming  upon  the  defect 17 

14.  Who  comes  within  the  statute 17 

15.  He  must  show  some  bodily  injury 18 

16.  The  defect  must  be  the  proximate  cause  of  that  injury    .  19 

17.  The  defect  must  also  be  its  sole  cause 20 

18.  What  constitutes  a  defect  in  the  highway 22 

19.  The  cause  of  the  defect  immaterial 24 

20.  The  defect  must  be  in  the  travelled  part 25 

21.  Snow  and  ice  as  a  defect 27 

22.  An  illegal  use  of  the  highway  as  a  defect 29 

23.  A  failure  to  light  the  highway  as  a  defect 29 


CONTENTS. 

Page 

24.  Insecure  projections  as  defects 30 

25.  Objects  that  cause  horses  to  take  fright  as  defects       .     .  32 

26.  The  duty  to  erect  railings 33 

27.  The  test  of  the  necessity  of  a  railing 34 

28.  Railings  erected  to  close  a  highway  or  to  guard  an  exca- 

vation        36 

29.  The  kind  of  railing  required 37 

30.  Pleading  where  defect  relied  on  is  a  want  of  a  railing     .  38 

31.  The  plaintiff  must  show  the  legal  establishment  of  the 

way         38 

32.  Highways  established  by  statute  mode 39 

33.  Highways  established  by  prescription 41 

34.  Highways  established  by  dedication 41 

35.  The  effect  of  evidence  of  repairs        43 

36.  The  liability  with  reference  to  private  ways 43 

37.  The  plaintiff  must  show  that  the  defect  was  not  remedied 

through  a  lack  of  due  diligence  on  part  of  the  town  .  44 

38.  What  evidence  is  competent  for  that  purpose     ....  45 

39.  The  use  of  the  word  "persons"  in  the  statute     ....  46 

40.  The  extent  of  the  duty  to  repair  the  highways        ...  47 

41.  This  duty  not  affected  by  the  location  within  the  high- 

way of  roads  operated  by  other  corporations  ....  49 

42.  This  duty  cannot  be  avoided  by  delegation 50 

43.  The  plaintiff  must  show  that  the  town  had  notice,  or 

might  with  due  diligence  have  had  notice,  of  the  defect  51 

44.  Notice  to  whom 52 

45.  Actual  notice  of  the  defect 52 

46.  Constructive  notice  of  the  defect       53 

47.  The  object  of  requiring  the  plaintiff  to  give  notice  of  the 

accident 56 

48.  In  what  cases  notice  of  the  accident  must  be  given      .     .  57 

49.  The  sufficiency  of  such  a  notice 58 

50.  The  statement  therein  of  the  time  of  the  accident  ...  59 

51.  The  statement  therein  of  the  place  of  the  accident      .     .  59 

52.  The  statement  therein  of  the  cause  of  the  accident     .     .  60 

53.  The  right  of  action  is  complete  as  soon  as  such  a  notice 

is  given 61 

54.  When  an  inaccuracy  in  such  a  notice  is  not  fatnl    ...  62 

55.  The  limitation  of  the  amount  that  may  be  recovered      .  63 


CONTENTS.  Vll 

Page 

§  56.  The  notice  of  the  accident  must  be  wholly  in  writing       .  64 

57.  By  whom  it  may  be  signed       .......     ...  64 

58.  Its  service  upon  the  town      .     ........     .     .  65 

59.  Incapacity  to  give  it  within  the  required  time     ....  66 

60.  The  giving  of  it  where  the  injured  person  has  died  with- 

out having  given  it  .............  67 

61.  The  effect  of  a  tender  made  under  section  22      ....  68 
Evidence  as  to  whether    or   not  there  was  a  defect  in 

the  highway. 

62.  The  act  of  other  persons       ...........  69 

63.  The  existence  of  similar  conditions  elsewhere     ....  70 

64.  The  state  of  the  highway  at  other  times    ......  70 

65.  Admissions  made  by  the  town        .........  71 

Evidence  as  to  whether  or  not  the  defect  might  have  been 

remedied. 

66.  The  existence  of  similar  conditions  at  other  times       .     .  72 

67.  The  expense  of  repairing  the  highway      ......  73 

Evidence   as  to  whether  or  not  the  town  had  notice 

of  the  defect. 

68.  The  notoriety  of  the  defect       ..........  74 


PART   II. 
THE  LIABILITY  OF  OWNERS  OR  KEEPERS  OF  DOGS. 

§  69.  The  nature  of  the  liability    ...........  76 

70.  The  effect  of  the  statute  imposing  it.     Scienter       ...  76 

71.  Proximate  cause     ..............  77 

72.  Due  care    .................  78 

73.  Applicatiou  of  the  statute  to  injuries  received  outside 

the  State     ................  80 

74.  The  liability  of  owners  or  keepers  is  several  only       .     .  81 

75.  What  constitutes  a  keeper    .     .     .     .»   .......  82 

76.  The  acts  of  the  dog     .     .     .     ..........  82 

77.  The  intent  of  the  dog        ............  83 

78.  The  character  of  the  dog     ...........  83 

79.  Who  may  sue  under  the  statute    .........  84 

80.  The  elements  of  damage       ...........  85 

81.  Doubling  the  damages     ............  86 


VI 11  CONTENTS. 


PAET  III. 

THE  LIABILITY  OF  COMMON    CARRIERS  OF 
PASSENGERS. 

I.    Steam  Railroads,    (a)  Pub.  Sts.,  ch.  112,  s.  212. 

Page 

82.  The  liability  for  causing  death  purely  statutory       .     .       88 

83.  And  is  essentially  penal  in  its  nature 89 

84.  The  statute  applies  where  the  death  was  not  instan- 

taneous as  well  as  where  the  deceased  was  instantly 
killed 90 

85.  The  negligence  of  the  corporation  distinct  from  the 

gross  negligence  of  its  servants 91 

86.  The  negligence  of  the  corporation 91 

87.  The  gross  negligence  of  its  servants 93 

88.  The  meaning  of  "  operating  a  railroad  " 93 

89.  The  meaning  of  "  while  engaged  in  its  business  "    .     .  94 

90.  When  the  relation  of  passenger  and  carrier  arises  .     .  95 

91.  The  effect  of  the  payment  of  fare  upon  the  relation     .  97 

92.  The  termination  of  the  relation  by  the  act  of  the  pas- 

senger  98 

93.  The  termination  of  the  relation  in  the  usual  course  of 

events 99 

94.  The  question  of  the  due  care  of  the  passenger    .     .     .     100 

95.  A  person  not  a  passenger  must  be  shown  to  have  been 

in  the  exercise  of  due  care 101 

96.  The  meaning  of  "  in  employment  of  such  corporation" 

as  applied  to  such  a  person 102 

97.  It  must  appear  that  administration  has  been  taken  out 

in  this  Commonwealth 102 

98.  And  that  a  beneficiary  exists 103 

99.  Trespassers 104 

100.  Negligence  on  the   part   of  the    defendant   must   be 

shown 105 

101.  The  effect  of  the  amendment  of  1883 106 

I.    Steam  Railroads,     (b)  Pub.  Sts.,  ch.  112,  s.  213. 

102.  The  distinction  between  proceeding  under  s.  212  and 

s.  213 108 


CONTENTS.  IX 

Page 

103.  What  the  plaintiff  must  allege  in  his  pleadings  .     .     .  110 

104.  He  must  show  that  the  accident  happened  at  a  cross- 

ing over  such  a  way  as  is  described  in  s.  163    .     .     .  110 

105.  The  omission  to  give  the  required  signals 112 

106.  The  evidence  of  the  omission  of  the  signals     ....  112 

107.  The   plaintiff    must   show    that  such  omission    con- 

tributed to  the  injury 114 

108.  Gross  negligence  of  the  injured  person  a  matter  of  de- 

fence only 115 

II.   Proprietors  of  Steamboats,  Stage-coaches,  etc. 

109.  The  scope   of  the  statute    imposing   liability    upon 

them 117 

III.   Street  Railways. 

110.  The  statute  simply  creates  a  new  remedy 118 

111.  The  construction  of  the  statute 119 

112.  Who  is  a  passenger  within  the  statute 120 

113.  Trespassers 121 


PAKT    IV. 
THE  LIABILITY  OF  EMPLOYERS. 

114.  The  construction  of  the  act  imposing  the  liability   .     .  122 

115.  The  general  effect  of  the  act 123 

116.  The  common  law  liabilities  of  employers  unaffected  by 

the  act 124 

117.  Declaring  under  the  act.    Counts 125 

118.  The  defence  of  common  employment 126 

119.  The  creative  operation  of  the  act 126 

120.  Application  of  the  act  to  municipal  corporations      .     .  127 

121.  Waiver  by  the  employee  of  the  rights  given  by  the 

act 128 

122.  Assumption  of  risk.   Defects  in  ways,  works,  or  machin- 

ery        129 

123.  Exceptions  to  the  doctrine  of  assumption  of  risk     .     .  131 

124.  Volent i  non  fit  injuria 133 

125.  Assumption  of  risk.    Negligence  of  superintendent    .  134 


X  CONTENTS. 

PBRO 

§  126.  Actions  under  the  act  in  the  Federal  courts   .-.    .    .  135 

127.  Who  may  sue  under  the  act.     What  he  must  show      .  136 

128.  The  requirement  as  to  due  care 136 

129.  Some  principles  of  the  law  of  due  care  applied  under 

the  act 137 

130.  The  provisions  of  s.  1,  cl.  1,  extend  the  liability  of  em- 

ployers       140 

131.  The  relation  of  the  defect  in  the  ways,  etc.,  to  the  in- 

jury       141 

132.  What  defects  come  within  the  clause 142 

133.  The  presence  of  extraneous  substances  as  a  defect  .    .  143 

134.  The  failure  to  supply  safety  contrivances  as  a  defect   .  143 

135.  The  negligent  use  of  safe  appliances  as  a  defect .     .     .  144 

136.  The  unsuitableness  of  safe  appliances  as  a  defect     .     .  144 

137.  A   dangerous   method   of  carrying  on  business  as  a 

defect 145 

138.  Variance  between  declaration  and  proof  as  to  charac- 

ter of  defect      146 

139.  The  meaning  of  the  phrase  "  in  the  condition  "  .     .     .  146 

140.  Paths  necessarily  used  as  a  part  of  the  ways  .     .     .     .  146 

141.  Explosives  as  a  part  of  the  ways  or  works 147 

142.  Partially  completed  and  temporary  structures  as  part  of 

the  ways  or  works 147 

143.  The  plaintiff  must  show  that  the  ways,  etc.,  were  under 

the  control  of  the  employer  and  were  used  by  his  au- 
thority       149 

144.  The  general  application  of  this  rule 150 

145.  The  application  of  this  rule  to  foreign  cars     .     .     .     .  151 

146.  The  effect  of  the  words  "  which  arose  from  ".     .    .    .  152 

147.  Or  had  not  been  discovered  or  remedied 153 

148.  Remedied 153 

149.  The  duty  of  the  employer  to  furnish  and  maintain  safe 

appliances 154 

150.  The  duty  of  the  employer  relative  to  inspection  .     .     .  155 

151.  How  clause  one  extends  the  liability  of  employers  .     .  156 

152.  A  person  intrusted 157 

153.  The  provisions  of  s.  1,  cl.  2,  further  extend  the  liability 

of  employers 158 

154.  What  is  negligence  of  the  superintendent 159 


CONTENTS.  Xi 

Page 
i  155.  The  negligence  of  the  superintendent  need  not  be  the 

sole  cause  of  the  injury 160 

156.  Who  is  a  superintendent 160 

157.  He  must  be  a  person  intrusted  with  superintendence  .  161 

158.  He  must  be  exercising  superintendence 163 

159.  Sole  or  principal  duty 164 

160.  Superintendence  as  a  sole  duty 165 

161.  Superintendence  as  a  principal  duty 166 

162.  The  limits  of  the  operation  of  clause  two 169 

163.  The  general  effect  of  clause  three 171 

164.  The  scope  of  clause  three 172 

165.  For  whose  negligence  it  makes  the  employer  responsible  173 

166.  Charge  or  control 174 

167.  The  entire  charge  or  control  need  not  be  in  one  person  176 

168.  The  person  in  charge  or  control  of  a  train  need  not  be 

npon  it 176 

169.  The  clause  applies  only  to  a  "signal  ...  or  train  "  as 

a  whole 177 

170.  What  constitutes  a  train 178 

171.  The  construction  of  the  word  "railroad" 179 

172.  The  locomotive  or  train  must  be  actually  "  upon  a  rail- 

road" when  the  accident  happens 180 

173.  Section  one  of  the  act  as  originally  passed  does  not  make 

the  death  of  an  employee  a  substantive  cause  of  action  181 

174.  Position  of  an  employee  suing  under  the  act  ....  181 

175.  The  rights  given  by  the  amendment  of  1 892   ....  184 

176.  The  effect  of  that  amendment 185 

177.  The  subject-matter  and  object  of  section  two  of  the  act  185 

178.  Due  care  on  the  part  of  the  deceased 186 

1 79.  The  plaintiff  must  establish  the  fact  that  the  death  was 

instantaneous  or  without  conscious  suffering    .     .     .  187 

180.  What  constitutes  death  without  conscious  suffering     .  188 

181.  Wherein  the  section  makes  a  distinction  between  the 

negligence  of  the  employer  and  that  of  his  employees  1 89 

182.  In  whom  the  right  of  action  is  vested 190 

183.  A  next  of  kin  must  establish  the  fact  of  dependence    .  190 

184.  What  constitutes  dependence 191 

185.  The  meaning  of  the  final  provision  of  section  two  .     .  192 

186.  The  subject-matter  of  section  three 194 


XI 1  CONTENTS. 

Page 

§  187.  The  requirement  of  notice  of  the  accident 194 

188.  The  construction  of  such  notice 195 

189.  The  statement  therein  of  the  time  of  the  accident   .     .  196 

190.  The  statement  therein  of  the  place  of  the  accident .     .  196 

191.  The  statement  therein  of  the  cause  of  the  accident      .  196 

192.  The  service  of  the  notice 197 

193.  The  allegation  of  notice  in  the  declaration      ....  198 

194.  The  signing  of  the  notice  by  the  attorney 198 

195.  The  giving  of  the  notice  where  death  is  instantaneous  198 

196.  The  provisions  as  to  notice  do  not  apply  to  common 

law  cases 199 

197.  When  the  insufficiency  of  the  notice  becomes  immaterial  200 

198.  The  effect  of  section  four  of  the  act 201 

199.  The  contractor  may  also  be  the  "person  entrusted"    .  202 

200.  Section  five  of  the  act  creates,  not  a  condition,  but  a 

defence 203 

PAET  V. 

THE  LIABILITY  OF  OTHER  PERSONS  AND 
CORPORATIONS. 

I.  Telegraph  Companies 204 

II.  Gas  and  Electric  Light  Corporations 206 

III.  Persons  and  Corporations  in  General 207 

APPENDIX  A. 

Public  Statutes,  ch.  52,  ss.  17-22 209 

Acts,  1887,  ch.  270,  as  amended 212 

APPENDIX  B. 

The  development  of  the  statute  imposing  liability  upon  mu- 
nicipal corporations 217 

The  development  of  the  statute  imposing  liability  upon  com- 
mon carriers  ...  ....  221 


INDEX    .  227 


TABLE   OF  CASES. 


Page 

Adams  v.  Carlisle  (21  Pick.  146) 6 

v.  Chicopee  (147  Mass.  440) 27 

Gregory  v.  (14  Gray,  242) 49 

v.  Natick  (13  Allen,  429) 33,  34,  36 

Snow  v.  (1  Cash.  443) 20,22,24,26 

Adasken  v.  Gilbert  (165  Mass.  443) 148,  167 

^Etna  Mills,  Rosebackf.  (158  Mass.  379)   .....    161,167 

Aldrich  v.  Pelham  (1  Gray,  510) 69,  70 

Alger  v.  Lowell  (3  Alleu,  402) 9,  21,  34,  3d 

Allen  v.  Smith  Iron  Co.  (160  Mass.  557) 145,155 

Allerton  y.  Boston  &  Maine  Railroad  (146  Mass.  241)     .     100,110 

Alley,  Dolan  v.  (153  Mass.  380) 198 

Irwin  v.  (158  Mass.  249) 138 

Allyn,  Lynch  v.  (160  Mass.  248) 132,  134,  197 

Amesbury,  Welsh  v.  (170  Mass.  437) 52,53 

Amherst,  Lyman  v.  (107  Mass.  339) 37,  38 

Pratt  v.  (140  Mass.  167) 22,  23,  24,  36 

Andover,  Jones  v.  (9  Pick.  146) 40 

Jones  v.  (10  Allen,  18) 11,12 

Palmer  v.  (2  Cush.  600) 7,  22 

Arey  v.  Newton  (148  Mass.  598) 22,26 

Arlington,  Bemisv.  (114  Mass.  507) 20,32 

Ashley  v.  Hart  (147  Mass.  573) 157 

Aston  v.  Newton  (134  Mass.  507) 26,39,41,60 

Atkins  v.  Merrick  Thread  Co.  (142  Mass.  431) 156 

Attleborough,  Hayden  v.  (7  Gray,  338)      ....      27,  34,  39,  43 
Rochefort  v.  (154  Mass.  140) 54 


XIV  TABLE   OF   CASES. 

Page 

Attleborough,  Stone  v.  (140  Mass.  328) 33 

Austin  v.  Boston  &  Maine  Railroad  (164  Mass.  282)  .     .     130, 131 

Babson  v.  Rockport  (101  Mass.  93) 15,  20 

Bacon  v.  Boston  (3  Cash.  174) 20,  70 

v.  Charlton  (7  Cash.  581 )  68 

Baddeley  v.  Earl  Granville  (19  Q.  B.  D.  423) 132 

Badger,  Graham  v.  (164  Mass.  42) 182 

Bagley  v.  New  York,  etc.  Railroad  (165  Mass.  160)  ....  Ill 
Bailey  v.  Boston  (116  Mass.  423) 49 

v.  Everett  (132  Mass.  441) 60 

Baker,  Smith  v.  ([1891]  A.  C.  325) 133,  145 

Ballard,  VVeblin  v.  (17  Q.  B.  D.  122) 182 

Barbers  Roxbury  (11  Allen,  318) 22,29 

Barclay  v.  Boston  (167  Mass.  596) 66 

Barnard,  Reynolds  v.  (168  Mass.  226) 148,  149,  166 

Barnes  v.  Chicopee  (138  Mass.  67) 34,35 

Barnstable,  Hinckley  v.  (109  Mass.  126) 6 

Barrett  v.  Maiden  and  Melrose  Railroad  (3  Allen,  101)  .  .  .  82 

Barton  v.  Springfield  (110  Mass.  131) 10 

Bayley  v.  Eastern  Railroad  (125  Mass.  62)     .     .     .     .     .     .     .112 

Beauregarde  v.  Webb  Granite,  etc.  Co.  (160  Mass.  201)  .  .  1  25 

Beique  v.  Hosmer  (169  Mass.  541) 130,148 

Bemis  v.  Arlington  (114  Mass.  507) 20,32 

Bent,  Whittakerw.  (167  Mass.  588) 142,154,168 

Berkshire  Railroad  Co.,  Carey  v.  (1  Cash.  475) 89 

Berrenberg  v.  Boston  (137  Mass.  231) 71 

Beverly,  Liffint;.  (145  Mass.  549) 62 

Bigelowu.  Randolph  (14  Gray,  541) 3 

v.  Rutland  (4  Cash.  247) 10 

Billings  v.  Worcester  (102  Mass.  329) 25,  27,  45,  53 

Birge,  Flumley  v.  (124  Mass.  57) 78,  79 

Blackstone  v.  County  Commissioners  (108  Mass.  68)  .  .  .  .  38 

Kelly  v.  (147  Mass.  448) 10 

Blair  v.  Pelham  (118  Mass.  420) 69 

Blake  v.  Lowell  (143  Mass.  296) 51,  52 

Blessiugton  v.  Boston  (153  Mass.  409) 51 

Bliss  v.  Deerfield  (13  Pick.  102) 39,  40 

v.  South  Hadley  (145  Mass.  91) 1G 

Blodgett  v.  Boston  (8  Allen,  237) 5,  15,  17 


TABLE   OF   CASES.  XV 

Page 
Blood  v.  Tyngsborough  (103  Mass.  509)     ........       6 

Ely  v.  Haverhill  (110  Mass.  520) 6 

Boclwell  v.  North  Andover  (110  Mass.  511  n.) 45 

Boston,  Bacon  v.  (3  Cush.  174) 20,  70 

Bailey  v.  (116  Mass.  423) 49 

Barclay  v.  (167  Mass.  596) 66 

Berrenberg  v.  (137  Mass.  231) .71 

Blessington  v.  (153  Mass.  409) 51 

Blodgett  v.  (8  Allen,  237) 5,15,17 

Bowes  v.  (155  Mass.  344) 6,32,61 

Bowman  v.  (5  Cush.  1) 40 

Burtv.  (122  Mass.  223) 23 

Canterbury  v.  (141  Mass.  215) 58 

Commonwealth  v.  (97  Mass.  555) 204 

Crafts  v.  (109  Mass.  519) 9 

Cromarty  v.  (127  Mass.  329) 22,  24 

Cronini>.  (135  Mass.  110) 59 

Crosby  v.  (118  Mass.  71) 52 

Damon  v.  (149  Mass.  147) 33 

Donaldson  v.  (16  Gray,  508) 52,  53,  71 

Foster  v.  (127  Mass.  290) 52 

Gerald  v.  (108  Mass.  580) 37 

Gould  v.  (120  Mass.  300) 39,41 

Grahams.  (156  Mass.  75)       16 

Hamilton  v.  (14  Allen,  475) 16,18 

Hanscom  v.  (141  Mass.  242) 52,  53 

Harriman  v.  (114  Mass.  241) 53 

Hemphill  v.  (8  Cush.  195) 42 

Hennessy  v.  (161  Mass.  502) 139,170,171,182 

Higgins  v.  (148  Mass.  484) 14 

Hilton  v.  (171  Mass.  478)        8 

Hutchins  v.  (12  Allen,  571  n.) 27 

Jones  v.  (104  Mass.  75) 30,31 

Kimball  v.  (1  Allen,  417) 18 

Larkin  v.  (128  Mass.  521) 58,59 

Mahoney  v.  (171  Mass.  427) 128 

May  v.  (150  Mass.  517) 66 

McAuley  «.  (113  Mass.  503) 28 

McDougal  v.  (134  Mass.  149) 61 


Xvi  TABLE   OF   CASES. 

Page 

Boston,  McGaffigan  v.  (149  Mass.  289) 23,  53 

McGowan  v.  (170  Mass.  384) 27 

McKennay.  (131  Mass.  143) 39,42 

Morse  v.  (109  Mass.  446) 28 

Nason  v.  (14  Allen,  508) 27 

Neal  v.  (160  Mass.  518) 71 

Post  v.  (141  Mass.  189)       54,  73 

Powers  v.  (154  Mass.  60) 23 

Prentisst).  (112  Mass.  43) 49,51 

Richardson  v.  (156  Mass.  145) 33 

Saunders  v.  (167  Mass.  595) 66 

Scanlan  v.  (140  Mass.  84) 4 

Steelev.  (128  Mass.  583) 44 

Veale  v   (135  Mass.  187) 39,41 

White  v.  (122  Mass.  491) 36 

Wilson  v.  (117  Mass.  509) 39,43,47 

Woods  v.  (121  Mass.  337)       6 

Boston  &  Albany  Railroad,  Caron  v.  (164  Mass.  523)  132,  137,  146, 

174,  175,  178,  187 

Cassadyu.  (164  Mass.  168) 130 

Commonwealth  v.  (121  Mass.  36) 103 

Daley  v.  (147  Mass.  101) 94 

Devine  v.  (159  Mass.  348) 175,  176,  177 

Dickie  v.  (131  Mass.  516) 57 

Dowd  v.  (162  Mass.  185) 167 

Doyle  v.  (145  Mass.  386) 115 

Elkinsu.  (115  Mass.  190)        114 

Fairman  v.  (169  Mass.  170) 178 

Fitzgerald  v.  (156  Mass.  293) 169,170 

Fuller  v.  (133  Mass.  491) 107 

Goodes  v.  (162  Mass.  287)       107 

Grangers  (146  Mass.  276) 116 

Hanks  v.  (147  Mass.  495) 112 

Hodnett  v.  (156  Mass.  86)       .......      188,191,192 

Hubbard  v.  (159  Mass.  320) 113 

Hubbard  v.  (162  Mass.  132) 93,101 

Jones  v.  (157  Mass.  51) 199 

June  v.  (153  Mass.  79) 96,110 

Lyman  v.  (70  Fed.  Rep.  409) 89 


TABLE   OF   CASES.  XVli 

Page 
Boston  &  Albany  Railroad,  Lynch  v.  (159  Mass.  536)    .       137,  138 

Mack  v.  (164  Mass.  393) 57 

Maher  v.  (158  Mass.  36) 139,187,188,192 

Harden  v.  (159  Mass.  393) 112 

Murphy  v.  (167  Mass.  64) 141 

Perkins  v.  (90  Fed.  Rep.  321)        90 

Reed  v.  (164  Mass.  129) 182 

Sprow  v.  (163  Mass.  330) Ill 

Sullivan  v.  (156  Mass.  378) 104 

Tilton  v.  (169  Mass.  253) 101 

Boston  Cordage  Co.,  McGee  v.  (139  Mass.  445) 141 

Boston  Electric  Light  Co.,  Flynn  j>.  (171  Mass.  395)      ...     168 

Hector  r.  (161  Mass  558) 205,  207 

Illingsworth  v.  (161  Mass.  583) 205 

Willey  v.  (168  Mass.  40) 146,  154,  188 

Boston  Manufacturing  Co.,  Tenanty  v.  (170  Mass.  323)      .     .     130 
Boston  &  Lowell  Railroad,  Commonwealth  v.  (126  Mass.  61)  94,  101 

Commonwealth  v.  (134  Mass.  211) 89,100 

Lowell  v.  (23  Pick.  24) 24 

Boston  &  Maine  Railroad,  Allerton  v.  (146  Mass.  241)         100,  110 

Austin  v.  (164  Mass.  282) 130,131 

Bradley  v.  (2  Cush.  539) 109 

Clark  v.  (164  Mass.  434)        101 

Coakley  v.  (159  Mass.  32) Ill 

Commonwealth  v.  (129  Mass.  500) 99 

Commonwealth  v.  (133  Mass.  383)       91,  93,  107,  108,  109,  112 

Felt  v.  (161  Mass.  311) 136 

Johanson  v.  (153  Mass.  57) Ill,  114 

Manley  v.  (159  Mass.  493) 116 

McCreary  v.  (153  Mass.  300) 104,111 

McKimble  v.  (139  Mass.  542) 98,  100 

McKimble  v.  (141  Mass.  463) 99 

Mears  v.  (163  Mass.  150)       139,  187,  188 

Menard  v.  (150  Mass.  386) 113,114 

Shear.  (154  Mass.  31) 139,186 

Shepard  v.  (158  Mass.  174)  ....         139 

St.  Jean  v.  (170  Mass.  213) 140 

Thompson  v.  (153  Mass.  391) 139 

Walsh  v.  (171  Mass.  52) 110,113,115 

6 


XV111  TABLE   OP   CASES. 

Page 
Boston  &  Maine  Railroad,  Whittaker  v.  (7  Gray,  98)     .     .     .     Ill 

Wright  v.  (129  Mass.  440) 110 

Boston  &  Providence  Railroad,  Carter  v.  (139  Mass.  525)  .  .  47 
Boston,  R.  B.  &  L.  Railroad,  Inness  v.  (168  Mass  433)  ...  96 
Boston  Tow-Boat  Co.,  Coughlin  v.  (151  Mass.  92)  ....  124 

Johnson  v.  (135  Mass.  209) 141 

Boston  Water  Power  Co.,  Taylor  r.  (12  Gray,  415)  .  .  .  39,41 
Boston  &  Worcester  Railroad,  Commonwealth  v.  (11  Cush. 

512) 104,  107 

Commonwealth  v.  (101  Mass.  201) 92,93 

Farwell  v.  (4  Met.  49) 134,  171 

Bosworth,  Brick  v.  (162  Mass.  334) 196,197 

v.  Swansey  (10  Met.  363) 11 

Boulester  v.  Parsons  (161  Mass.  182) 78,79 

Bourget  v.  Cambridge  (156  Mass.  391) 17 

v.  Cambridge  (159  Mass.  388) 53 

Bowers  v.  Connecticut  River  Railroad  (162  Mass.  312)  149, 152,  157 

v.  Suffolk  Manufacturing  Co.  (4  Cush.  332) 42 

Bowes  v.  Boston  (155  Mass.  344) 6,32,61 

Bowman  v.  Boston  (5  Cush.  1) 40 

Boxford,  Stevens  v.  (10  Allen  25) 6 

Brackenridge  v.  Fitchburg  (145  Mass.  160)       8 

Bradford,  Merrill  v.  (110  Mass.  505) 69,70 

Bradley  v.  Boston  &  Maine  Railroad  (2  Cush.  539)    ....     109 

Consolidated,  etc.  Machine  Co.  v.  (171  Mass.  127)  .     .     .     203 
Brady  v.  Lowell  (3  Cush.  121) 5 

v.  Ludlow  Manufacturing  Co.  (154  Mass.  468)    .     .       125,142 

v.  Old  Colony  Railroad  (162  Mass.  408) 101 

Brewer  v.  Crosby  (11  Gray,  29) 84 

Brick  v.  Bosworth  (162  Mass.  334) 196,  197 

Bridgewater,  Thompson  v.  (1  Pick.  188) 6,  7,  21 

Tisdale  v.  (167  Mass.  248)     .     .     . 34,35 

Britton  v.  Cummington  (107  Mass.  347) 6,14,16 

Brockton,  Little  v.  (123  Mass.  511) 6,21 

Paine  v.  (138  Mass.  564) 44 

Brockton  Street  Railway,  Commonwealth  v.  (143  Mass.  501)         95 

Broderick  v.  Higginson  (169  Mass.  482) 84 

Brookline,  Lyons  v.  (119  Mass.  491) 15.20 

Brooks  v.  Petersham  (16  Gray,  181) 7,71 


TABLE   OF   CASES.  XIX 

Page 

Brooks  v.  Somerville  (106  Mass.  271) .     23,51,52 

Brouillette  v.  Conn.  River  Railroad  (162  Mass.  198)      ...     132 

Brown  v.  Lawrence  (120  Mass.  1) 43 

Browne  v.  New  York,  etc.  Railroad  (158  Mass.  247)       ...     186 

Brownell,  O'Keefe  v.  (156  Mass.  131)        126,144,192 

Buckley  v.  Old  Colony  Eailroad  (161  Mass.  26) 99 

Buddington  v.  Shearer  (20  Pick.  477) 81,  84,  86 

Burford,  Jones  v.  (1  Times  Law  Rep.  137) 151 

Burns  v.  Stuart  (168  Mass.  19) 84 

v.  Washburn  (160  Mass.  457) 148,  169 

Burt  v.  Boston  (122  Mass.  223) 23 

Cambridge,  Bourget  v.  (156  Mass.  391) 17 

Bourget  v.  (159  Mass.  388)        53 

Coughlan  v.  (166  Mass.  268) 127,  179,  197 

Gay  v.  (128  Mass.  387) 4,  5,  56 

Hayes  P.  (136  Mass.  402) 46,73 

Lyon  v.  (136  Mass.  419) 30 

Lyons  v.  (132  Mass.  534)       66,67 

McCabe  v.  (134  Mass.  484) 59,  66 

McNulty  v.  (130  Mass.  275)        58,  60 

Scannal  v.  (163  Mass.  91) 34,35 

Cambridge  Railroad  Co.,  Gunn  v.  (144  Mass.  430)     .     .     .     .     119 

Canning  v.  Williamstown  ( 1  Cush.  451) 19 

Canterbury  i'.  Boston  (141  Mass.  215)       58 

Carberry  v.  Sharon  (166  Mass.  32) 62,65 

Carey  v.  Berkshire  Railroad  Co.  (1  Cush.  475) 89 

v.  Hubbardston  (172  Mass.  106) 26 

Carlisle,  Adams  v.  (21  Pick.  146) 6 

Caron  v.  Boston  &  Albany  Railroad  (164  Mass.  523)    132,  137,  146, 

174,  175,  178,  187 
Carrigan  v.  Washburn  &  Moen  Mfg.  Co.  (170  Mass.  79)     .     .     132 

Carroll  v.  Willcutt  (163  Mass.  221)       143,160,171 

Carter  v.  Boston  &  Providence  Railroad  (139  Mass.  525)    .     .      47 

Cashman  v.  Chase  (156  Mass.  342) 163,164,167 

Cassady  r.  Boston  &  Albany  Railroad  (164  Mass.  168)        .     .     130 

Cavagnaro  v.  Clark  (171  Mass.  359) 163,166,168 

Charlestown,  Cook  v.  (98  Mass.  80) 32 

Wilson  v.  (8  Allen,  137) 6,10,11,13 


XX  TABLE   OF   CASES. 

Page 

Charlton,  Bacon  r.  (7  Cush.  581) 68 

Davis  v.  (140  Mass.  422) 60 

Chase,  Cashman  v.  (156  Mass.  342) 163,  164,  167 

v.  Lowell  (149  Mass.  85)       32 

v.  Lowell  (151  Mass.  422) 53,74 

Chelsea,  Pettingell  v.  (161  Mass.  368) 128,182 

Shepherd  v.  (4  Allen,  113) 20,29 

Chemical  Paper  Co.,  McLean  r.  (165  Mass.  5) 186 

Chicopee,  Adams  v.  (147  Mass.  440) 27 

Barnes  r.  (138  Mass.  67) 34,35 

Dowdr.  (116  Mass.  93) 8,23 

Spellman  v.  (131  Mass.  443) 27,  58 

Chisholm  v.  Old  Colony  Railroad  (159  Mass.  3) 93 

Clapp,  Mitchell  v.  (12  Cush.  278) 76 

Clare  v.  New  York  &  New  England  Railroad  (167  Mass.  39)     141 
v.  New  York&  New  England  Railroad  (172  Mass.  211)      90, 

107,  124,  125 
Clark  v.  Boston  &  Maine  Railroad  (164  Mass.  434)    ....     101 

Cavagnaror.  (171  Mass.  359) 163,166,168 

v.  Commonwealth  (4  Pick.  125) 25 

v.  Merchants',  etc.  Transportation  Co.  (151  Mass.  352)    .     124 
v.  New  York,  etc.  Railroad  (160  Mass.  39)      .  106, 127, 184, 190 

v.  Waltham  (128  Mass.  567) 44 

Clarksburg,  Horrigan  v.  (150  Mass.  218) 8,20 

Clinton,  Conroy  v.  (158  Mass.  318) 126,  127,  157 

Lowe  v.  (133  Mass.  526) 59 

Lower.  (136  Mass.  24) 26 

Coakley  v.  Boston  &  Maine  Railroad  (159  Mass.  32)      .     .     .     Ill 

Coan  t.  Marlborough  (164  Mass.  206) 127 

Coburn,  Commonwealth  v.  (132  Mass.  555) 117 

Cochrane  Chemical  Co.,  Dane  r.  (164  Mass.  453)  .  161, 162, 170, 202 
Coffee  v.  New  York,  etc.  Railroad  (155  Mass.  21)       ...  149, 152 

Coggswell  P.  Lexington  (4  Cush.  307) 27,34 

Colerain,  Shepardson  v.  (13  Met.  55) 20 

Collingill  v.  Haverhill  (128  Mass.  218) 82 

Collins  v.  Dorchester  (6  Cush.  396) 69,  72 

v.  Greenfield  (1 72  Mass.  78) 128 

Columbia  Spinning  Co.,  French  v.  (169  Mass.  531)    ....     144 
Commonwealth  v.  Boston  (97  Mass.  555) 204 


TABLE   OF   CASES.  Xxi 

Page 

Commonwealth  v.  Boston  &  Albany  Railroad  (121  Mass.  36)  .  103 
v.  Boston  &  Lowell  Railroad  (126  Mass.  61)  .  .  .  .94,  101 
v.  Boston  &  Lowell  Railroad  (134  Mass.  211)  .  .  .89,  100 
v.  Boston  &  Maine  Railroad  (133  Mass.  383)  91,  93,  107,  108, 

109,  112 

v.  Boston  &  Maine  Railroad  (129  Mass.  500)  ....  99 
v.  Boston  &  Worcester  Railroad  (101  Mass.  201)  .  .  92,  93 
p.  Boston  &  Worcester  Railroad  (11  Cush.  512)  .  104,  107 

v.  Brockton  Street  Railway  (143  Mass.  501) 95 

Clark  v.  (4  Pick  125) 25 

v.  Coburn  (132  Mass.  555) 117 

v.  Coupe  (128  Mass.  63) 41 

v.  East  Boston  Ferry  Co.  (13  Allen,  589) 103,  117 

v.  Eastern  Railroad  (5  Gray,  473) 103 

v.  Fitchburg  Railroad  (120  Mass.  372)  ...   91,  93,  107,  109 

v.  Fitchburg  Railroad  (10  Allen,  189) 105 

v.  Hart  (11  Cush.  130) 63 

v.  Hartnett  (3  Gray,  450) 123 

v.  Metropolitan  Railroad  (107  Mass.  236) 90 

v.  Sanford(12  Gray,  174) 102 

v.  Vermont  &  Mass.  Railroad  (108  Mass.  7)  .     .     .    90,97,98 

v.  Wilmington  (105  Mass.  599) 33 

Connecticut  River  Mfg.  Co.,  Prendible  v.  (160  Mass.  131)  .  149, 167 
Connecticut  River  Paper  Co.,  Fitzgerald  ».  (155  Mass.  155)  13,  133 
Connecticut  River  Railroad,  Bowers  v.  (162  Mass.  312)  149,  152,  157 

Brouillette  v.  (162  Mass.  198) 132 

Dillon  v.  (154  Mass.  478) 104 

Houlihan  v.  (164  Mass.  555) 139,191 

Lawless  v.  (136  Mass.  1) 140 

Connelly  v.  Hamilton  Woolen  Co.  (1G3  Mass.  156)    ....     130 

Coimers  v.  Lowell  (158  Mass.  336) 62 

Connolly  r.Waltham  (156  Mass.  368) 127,160,203 

Conroy  v.  Clinton  (158  Mass.  318) 126,127,157 

Consolidated,  etc.  Machine  Co.  e>.  Bradley  (171  Mass.  127)     .     203 

Conway,  Smith  v.  (121  Mass.  216) 11 

Cook  v.  Charlestown  (98  Mass.  80) 32 

v.  Montague  (115  Mass.  571) 32 

Copley  v.  New  Haven  &  Northampton  Co.  (136  Mass.  6)  .  114,  116 
Coughlan  v.  Cambridge  (166  Mass.  268)  .....  127,  179,  197 


XX11  TABLE   OF   CASES. 

Page 

Coughlin  v.  Boston  To w-Boat  Co.  (151  Mass.  92) 124 

Coughtry  v.  Globe  Woolen  Co.  (56  N.  Y.  124)  .     .     .     .      201,  202 
Couuty  Commissioners,  Blackstone  v.  (108  Mass.  68)     ...      38 

Coupe,  Commonwealth  v.  (128  Mass.  63) 41 

Crafts  v.  Boston  (109  Mass.  519) 9 

Creamer  v.  West  End  Railway  (156  Mass.  320)     .     .     .       120,121 

Cromarty  v.  Boston  (127  Mass.  329) 22,24 

Crombie,  Lane  v.  (12  Pick.  177) 7 

Cronin  v.  Boston  (135  Mass.  110) 59 

Crosby  v.  Boston  (118  Mass.  71) 52 

Brewer  v.  ( 1 1  Gray  29) 84 

Crowley  v.  Cutting  (165  Mass.  436) 167,170 

Cummington,  Britton  v.  (107  Mass.  347) 6,  14,  16 

Cunningham  v.  Lynn  &  Boston  Street  Railway  (170  Mass.  298) 

130,  167 

Cushing,  Fisher  v.  (134  Mass.  374) 44,47 

Cutting,  Crowley  v.  (165  Mass.  436) 167,  170 

Dacey  v.  New  York,  etc.  Railroad  (168  Mass.  479)     ....     138 
v.  Old  Colony  Railroad  (153  Mass.  112)     .    106,127,178,190 

Daily  v.  Worcester  (131  Mass.  452) 35 

Daley  v.  Boston  &  Albany  Railroad  (147  Mass.  101)      ...       94 

Daltonv.  Salem  (131  Mass.  551) 60 

v.  Salem  (136  Mass.  278) 58 

v.  Salem  (139  Mass.  91) 64 

Daly  v.  New  Jersey  Steel  &  Iron  Co.  (155  Mass.  1)    .  190,  191, 194, 

199 

Damon  v.  Boston  (149  Mass.  147) 33 

v.  Scituate  (119  Mass.  66) 11 

Dane  v.  Cochrane  Chemical  Co.  (164  Mass.  453)  161,  162,  170,  202 

Daniels  v.  Lowell  (139  Mass.  56) 71 

Davis  v.  Charlton  (140  Mass.  422) 60 

v.  Dudley  (4  Allen,  557) '.     .     .       14 

v.  Leominster  (1  Allen,  182) 4,47,49 

v.  Longmeadow  (169  Mass.  551) 19 

r.  New  York  &  New  England  Railroad  (143  Mass.  301)  .       80 
v.  New  York,  N.  H.  &  H.  Railroad  (159  Mass.  532)      134,  138, 

139,  167,  170,  176 
Day  v.  Milford  (5  Allen,  98) 30 


TABLE    OF    CASES.  XXlll 

Page 

Day,  Zeiglerv.  (123  Mass.  152) 158 

Dean  v.  Smith  (169  Mass.  569) 171 

Dean  Steam  Pump  Co.,  Geloneck  v.  (165  Mass.  202)  132,  144,  149, 

167 

Debbins  v.  Old  Colony  Railroad  (154  Mass.  402) 116 

Dedham,  Kingsbury  v.  (13  Allen,  186) 32 

Deerfield,  Bliss  v.  (13  Pick.  102) 39,40 

Oilman  v.  (15  Gray,  577) 6,10,11,13 

Denison  v.  Lincoln  (131  Mass.  236) 78,  83 

Dennis,  Sears  v.  (105  Mass.  310) 21 

Devine  v.  Boston  &  Albany  Railroad  (159  Mass.  348)  175,  176,  177 
Dickerman  v.  Old  Colony  Railroad  (157  Mass.  52)  ....  199 
Dickie  v.  Boston  &  Albany  Railroad  (131  Mass.  516)  ...  57 

Dietrich  v.  Northampton  (138  Mass.  14) 18 

Dillon  v.  Connecticut  River  Railroad  (154  Mass.  478)  .  .  .  104 
Dobbins  v.  West  End  Street  Railway  (168  Mass.  556)  ...  57 

Doherty  v.  Waltham  (4  Gray,  596) 37 

Dolan  v.  Alley  (153  Mass.  380) 198 

Dolphin  v.  Plumley  (167  Mass.  167) 147 

Donahoe  v.  Old  Colony  Railroad  (153  Mass.  356)  .  176,  177,  196 
Donahue  v.  Washburn  &  Moen  Mfg.  Co.  (169  Mass.  574)  .  .  130 

Donaldson  v.  Boston  (16  Gray,  508) 52,53,71 

Donnelly  v.  Fall  River  (132  Mass.  299) 58,  59 

Donovan,  Regan  v.  (159  Mass.  1) 151 

Toomey  v.  (158  Mass.  232) 124,  202 

Dorchester,  Collins  v.  (6  Cush.  396) 69,72 

Vinal  v.  (7  Gray,  421) 29,50 

Dore,  Mahoney  v.  (155  Mass.  513) 134 

Doughty  V.  Firbank  (10  Q.  B.  D.  355) 179 

Douglas,  Roberts  v.  (140  Mass.  129) 59,60 

Young  v.  (157  Mass.  383) 60 

Dowel  v.  Boston  &  Albany  Railroad  (162  Mass.  185)  .  .  .  167 

v.  Chicopee  (116  Mass.  93) 8,23 

Doyle  v.  Boston  &  Albany  Railroad  (145  Mass.  386)  .  .  .  115 

v.  Fitchburg  Railroad  (162  Mass.  66) 90,  97,  102 

Drake  v.  Lowell  (13  Met.  292) 30 

Drew,  Holmes  v.  (151  Mass.  378) 44,57 

Driscoll  v.  Fall  River  (163  Mass.  105) 96 

Drommje  v.  Hogan  (153  Mass.  29) 200,  201 


XXIV  TABLE   OP   CASES. 

Page 

Drury  v.  Worcester  (21  Pick.  44) 39, 40 

Dudley,  Davis  v.  (4  Allen,  557) 14 

v.  Weston  (1  Met.  477) 72 

Duffy  v.  Upton  (113  Mass.  544) 182 

Dunstable,  Kidder  v.  (7  Gray,  104) 20 

Kidder  v.  (11  Gray,  342) 11,69,70 

Durgin  v.  Lowell  (3  Allen,  398) 44 

Dyer  v.  Fitchburg  Railroad  (170  Mass.  148)  ....  139,186 

Earl  Granville,  Baddeley  v.  (19  Q.  B.  D.  423) 132 

East  Boston  Ferry  Co.,  Commonwealth  v.  (13  Allen,  589)  103,  117 

Eastern  Railroad,  Bay  ley  v.  (125  Mass.  62) 112 

Commonwealth  v.  (5  Gray,  473) 103 

Merrill  v.  (139  Mass.  238) 93,  97 

Merrill  v.  (139  Mass.  252) 100 

Norton  v.  (113  Mass.  366) 110 

Pollock  v.  (124  Mass.  158) 110 

Prescott  v.  (113  Mass.  370  n.) 110 

Easthampton,  Fortin  v.  (142  Mass.  486) 62,  64 

Fortiii  v.  (145  Mass.  196) 53 

Easton,  Keith  v.  (2  Allen,  552) 26,  32 

Washburn  v 32 

Eaton  v.  Woburn  (127  Mass.  270) 18 

Edwards  v.  Worcester  (172  Mass.  104) 9,72 

Elkins  v.  Boston  &  Albany  Railroad  (115  Mass.  190)  .  .  .114 
Ellsbury  v.  New  York,  etc.  Railroad  (172  Mass.  130)  ....  130 

Elmer  v.  Locke  (135  Mass.  575) 141 

Elston,  Fleming?;.  (171  Mass.  187) 171 

Enfield,  Richards  v.  (13  Gray,  344) 20 

Engel  v.  New  York,  etc.  Railroad  (160  Mass  260)  .  150,  151,  153 
Essex  Electric  Street  Railway,  Gay  v.  (159  Mass.  242)  .  119,  121 
E-.erett,  Bailey  v.  (132  Mass.  441) 60 

Fairman  v.  Boston  &  Albany  Railroad  (169  Mass.  170)  .     .     .178 

Fallen  v.  West  End  Railway  (171  Mass.  249) 180 

Fall  River,  Donnelly  v.  (132  Mass.  299) 58,59 

Driscoll  v.  (163  Mass.  105) 196 

Powers?).  (168  Mass.  60) 132,139 

Taggartv.  (170  Mass.  325) 127 


TABLE   OF   CASES.  XXV 

Page 
Farwell  v.  Boston  &  Worcester  Railroad  (4  Met.  49)  .     .    134,  171 

Favour,  Sherman  r.  (1  Allen,  191) 77,82,83,84 

Felt  v.  Boston  &  Maine  Railroad  (161  Mass.  311) 136 

Finch,  Howe  v.  (17  Q.  B.  D.  187) 148 

Firbank,  Doughty  v.  (10  Q.  B.  D.  355) 179 

Fisher  v.  Gushing  (134  Mass.  374) 44,47 

Fisk  v.  Fitchburg  Railroad  (158  Mass.  238) 130,  155 

Fitcliburg,  Brackenridge  v.  (145  Mass.  160) 8 

Stockwell  v.  (110  Mass.  305) 33,41 

Weare  v.  (110  Mass.  334) 6,10 

Fitchburg  Railroad,  Commonwealth  c.  (10  Allen,  189)    .     .     .  105 
Commonwealth  v.  (120  Mass.  372)      .     .     .     .91,  93,  107,  109 

Doyle/;.  (162  Mass.  66) 90,97,102 

Dyer  v.  (170  Mass.  148) 139,186 

Fisk  v.  (158  Mass.  238) 130,155 

Ford  r.  (110  Mass.  240) 141 

Geyette  v.  (162  Mass.  549) 137,  138,  139 

Holden  v.  (129  Mass.  268) 140,154 

Littlejohn  v.  (148  Mass.  478) 89,97,105,106 

Livermore  v.  (163  Mass.  132) 101,109,112 

Lothropr.  (150  Mass.  423) 133,186 

Maguire  v.  (146  Mass.  379) 101 

Murray  v.  (165  Mass.  448) 101 

Peaslee  v.  (152  Mass.  155) 106 

Sullivan  v.  (161  Mass.  125) 130 

Thyng  v.  (156  Mass.  13)     .     .  138,  145,  156,  172,  173,  178,  180 

Tuttle  v.  (152  Mass.  42) 114 

Webster  v.  (161  Mass.  298) 95,96,97 

Fitzgerald  v.  Boston  &  Albany  Railroad  (156  Mass.  293)  .     169, 170 
v.  Connecticut  River  Paper  Co.  (155  Mass.  155)    .     .       13, 133 

Flagg  D.  Hudson  (142  Mass.  280) 19,  21 

Flaherty  v.  Norwood  Engineering  Co.  (172  Mass.  134)     .     .     .  137 

Flanders  v.  Norwood  (141  Mass.  17) 25,45 

Fleming  v.  Elston  (171  Mass.  187) 171 

v.  Springfield  ( 1 54  Mass.  520) 54 

Floyd  i:  Sugden  (134  Mass.  563) 158 

Flynn  v.  Boston  Electric  Light  Co.  (171  Mass.  395)    ....  168 

Fogg  v.  Nahant  (98  Mass.  578) 14 

Foley  v.  Pettee  Machine  Works  (149  Mass.  294) 195 


XXVI  TABLE   OP   CASES. 

Page 

Ford  v.  Fitchburg  Railroad  (110  Mass.  240) 141 

Fortin  v.  Easihampton  (142  Mass.  486) 62,  64 

v.  Easthampton  (145  Mass.  196) 53 

Foss  r.  Old  Colony  Railroad  (170  Mass.  168) 140 

Foster  v.  Boston  (127  Mass.  290)       52 

Fowler  v.  Gardner  (169  Mass.  505) 50 

Framingham,  Wheeler  v.  (12  Cush.  287) 72 

Freetown,  Spooner  v.  (139  Mass.  235) 60,  72 

French  v.  Columbia  Spinning  Co.  (169  Mass.  531)       ....  144 

Frost  v.  Waltham  (12  Allen,  85) 10 

Fuller  v.  Boston  &  Albany  Railroad  (133  Mass.  491)  .     .     .     .  107 

v.  Hyde  Park  (162  Mass.  51) 62 

Malcolm  v.  (152  Mass.  160)    ....    134,  159,  161,  167,  170 

Gagnon  v.  Seaconnet  Mills  (165  Mass  221) 170 

Galbraithv.  West  End  Rail  way  (165  Mass.  572) 120 

Galvin  u.  Parker  (154  Mass.  346) 77,81 

Gardner,  Fowler  v.  (169  Mass.  505) 50 

v.  New  England  Telephone,  etc.  Co.  (170  Mass.  156)    .     .  167 

Noyes  v.  (147  Mass.  505) 4,  53 

Smithy.  (11  Gray,  418) 11 

Welch  v.  (133  Mass.  529)  . 59,67 

v.  Weymouth  (155  Mass.  595) 62 

Gay  v.  Cambridge  (128  Mass.  387) 4,5,56 

v.  Essex  Electric  Street  Railway  (159  Mass.  242)      .    119,  121 
Gelonecki;.  Dean  Steam  Pump  Co.  (165  Mass.  202)  132, 144, 149, 167 

George  v.  Haverhill  (110  Mass.  506) 10,70,71 

Gerald  v.  Boston  (108  Mass.  580)       37 

Geyette  v.  Fitchburg  Railroad  (162  Mass.  549)  .     .      137,  138,  139 

Ghenn  v.  Proviucetown  (105  Mass.  313) 23 

Gibbs  v.  Great  Western  Railway  (12  Q.  B.  D.  208)     ....  126 

Gibson  v.  Jenney  ( 1 5  Mass.  205) .172 

Gilbert,  Adasken  v.  (165  Mass.  443) 148,  167 

v.  Roxbury  (100  Mass.  185) 27 

Oilman  v.  Deerfield  (15  Gray,  577) 6,10,11,13 

Gleason  v.  New  York,  etc.  Railroad  (159  Mass.  68)     .     .     130,155 
Globe  Woolen  Co.,  Coughtry  v.  (56  N.  Y.  124)   ....     201,202 

Gloucester,  Murphy  v.  (105  Mass.  470) 34,  35 

Gloucester  Street  Railway,  Morey  v.  (171  Mass.  164)       .    .     .119 


TABLE   OF    CASES.  XXV11 

Page 

Goodes  v.  Boston  &  Albany  Railroad  (162  Mass.  287)  .  .  .  107 
Goodridge  v.  Washington  Mills  Co.  (160  Mass.  234)  ....  130 

Gouin  v.  Wampanoag  Mills  (172  Mass.  222) 171 

Gould  i'.  Boston  (120  Mass.  300) 39,41 

Grace,  Welch  v.  (167  Mass.  590) 147,189 

Graham  v.  Badger  (164  Mass.  42) 182 

v.  Boston  (156  Mass.  75) 16 

Granger  v.  Boston  &  Albany  Railroad  (146  Mass.  276)  .  .  .116 

Great  Barrington,  Harris  ».  (169  Mass.  271) 14,  23 

Great  Western  Railway,  Gibbs  v.  (12  Q.  B.  D.  208)  ....  126 

Green  v.  Smith  (169  Mass.  485)  164,  187,  188 

Greenfield,  Collins  v.  (172  Mass.  78) 128 

Purple  v.  (138  Mass.  1) 24,34,53 

Gregory  v.  Adams  (14  Gray,  242)  . 49 

Griffin  "v.  Overman  Wheel  Co.  (61  Fed.  Rep.  568)  .  .  135,  137 

Griffiths  v.  The  Earl  of  Dudley  (9  Q.  B.  D.  357) 129 

Grogan  v.  Worcester  (140  Mass.  227) 60 

Groveland,  Whitman  v.  (131  Mass.  553)  .  .  39,  48,  56,  60,  61 
Guild,  McCarthy  v.  (12  Met.  291) 84 

v.  Shedd  (150  Mass.  255) 43 

Gulline  v.  Lowell  (144  Mass.  491) 16 

Gunn  v.  Cambridge  Railroad  Co.  (144  Mass.  430  n.)  .  .  .  .  119 

v.  New  York,  etc.  Railroad  (171  Mass.  417) 145 

Gustafsen  v.  Washburn  &  Moen  Mfg.  Co.  (153  Mass.  468)  .  139, 

192,  194,  199 

Hamilton  v.  Boston  (14  Allen,  475)       16,18 

Hamilton  Mfg.  Co.,  Moody  v.  (159  Mass.  70) 134 

Hamilton  Woolen  Co.,  Connelly  v.  (163  Mass.  156)   ....     130 

Hampshire,  Lyman  v.  (138  Mass.  74) 58,  59,  66,  196 

Lyman  v.  (140  Mass.  311) 9 

Hand,  McKay  v.  (168  Mass.  270) 148 

Hanks  v.  Boston  &  Albany  Railroad  (147  Mass.  495)     ...     112 

Ilanscom  v.  Boston  (141  Mass.  242) 52,  53 

Harriman  ».  Boston  (114  Mass.  241) 53 

Harris  v.  Great  Barrington  (169  Mass.  271)       14,23 

v.  Newbury  (128  Mass.  321) 58 

v.  Quincy  (171  Mass.  472) 63 

v.  Stevens  (31  Vt.  79) 96 


XXV1H  TABLE   OF   CASES. 

Page 

Hart,  Ashley  v.  (147  Mass.  573)       157 

Commonwealth  v.  (11  Gush.  130) 63 

Willetts  v.  ([1892]  2  Q.  B.  92)       147 

Hartnett,  Commonwealth  v.  (3  Gray,  450) 123 

Harwood  v.  Lowell  (4  Gush.  310) 6,  19 

v.  Oakham  (152  Mass.  421)        27 

Hathaway,  Ledwidge  v.  (170  Mass.  348)        200 

v.  Tirikham  (148  Mass.  85) 78,83 

Hatt  v.  Nay  (144  Mass.  186) 135 

Haverhill,  Ely  v.  (110  Mass.  520) 6 

Collingill  r.  (128  Mass.  218) 82 

George  v.  (110  Mass.  506) 10,  70,  71 

Raymond  v.  (168  Mass.  382) 19 

Savory  v.  (132  Mass.  324) 61 

Hawks  v.  Northampton  (116  Mass.  420) 49 

Hayden  v.  Attleborough  (7  Gray,  338)      ....       27,  34,  39,  43 

i'.  Stone  (112  Mass.  346) .     .     39,42 

Hayes  v.  Cambridge  (136  Mass.  402) 46,73 

v.  Hyde  Park  (153  Mass.  514) 20,  22 

Hector  v.  Boston  Electric  Light  Co.  (161  Mass  558)       .      205,  207 

Heland  v.  Lowell  (3  Allen,  407)        11 

Hemphill  v.  Boston  (8  Cush.  195) 42 

Hennessy  v.  Boston  (161  Mass.  502)     ....     139,  170,  171,  182 

Heske  t\  Samuelson  (12  Q.  B.  D.  30) 144 

Hicks  v.  New  York,  etc.  Railroad  (164  Mass.  424)      ...     89,  93 

Higgins  v.  Boston  (148  Mass.  484)        14 

v.  North  Andover  (168  Mass.  251) 65 

Higginson,  Broderick  v.  (169  Mass.  482) 84 

Hill  v.  Seekonk  (119  Mass.  85) 6 

Hilton  t;.  Boston  (171  Mass.  478) 8 

Hinckley  r.  Barnstable  (109  Mass.  126) 6 

v.  Somerset  (145  Mass.  326) 52,  74 

Hingham  Cordage  Co.,  Kenney  v.  (168  Mass.  278)    ....     130 

Hixon  v.  Lowell  (13  Gray,  59) 31 

Hobbs  r.  Lowell  (19  Pick.  405) 39,42 

Hodgson,  Raymond  v.  (161  Mass.  184) 78,79 

Hodnett  v.  Boston  &  Albany  Railroad  (156  Mass.  86)  188,  191,  192 

Hoey  v.  Natick  (153  Mass.  528) 46 

Hogan,  Drommie  v.  (153  Mass.  29) 200,  201 


TABLE   OF   CASES.  XXIX 

Page 

Holden  v.  Fitchburg  Railroad  (129  Mass.  268)  .  .  •  .  140,  154 
Holland  v.  Lynn  &  Boston  Railroad  (144  Mass.  425)  .  117,119 

Holmes  v.  Drew  (151  Mass.  578) 44,  57 

Holyoke,  Leonard  v.  (138  Mass.  78) 66 

Tuttle  v.  (6  Gray,  447) 19 

Warner  v.  (112  Mass.  362) 26,35 

Horrigan  v.  Clarksburg  (150  Mass.  218)  8,20 

Horton  v.  Ipswich  (12  Cush.  488) 6,45 

Hosmer,  Beique  v.  (169  Mass.  541)  130,  148 

Houlihan  v.  Connecticut  River  Railroad  (164  Mass.  555)  139,  191 
Howard  v.  Mendon  (117  Mass.  585) 36 

v.  North  Bridgewater  (16  Pick.  189) 26 

Howet'.  Finch  (17  Q.  B.  D.  187) 148 

v.  Lowell  (101  Mass.  99)  52 

Hubbard  v.  Boston  &  Albany  Railroad  (159  Mass.  320)  .  .  113 

v.  Boston  &  Albany  Railroad  (162  Mass.  132)  .  .  .  93,  101 
Hubbardston,  Carey  v.  (172  Mass.  106) 26 

Stone  v.  (100  Mass.  49) 14,28 

Hudson,  Flagg  v.  (142  Mass.  280) 19,21 

v.  Marlborough  (154  Mass.  218) 35 

Hughes  v.  Lawrence  (160  Mass.  474) 59 

Hunt  v.  Salem  (121  Mass.  294) 6,16 

Hutchins  v.  Boston  (12  Allen,  571  n.) 27 

Hyde  Park,  Fuller  v.  (162  Mass.  51) 62 

Hayes  v.  (153  Mass.  514) 20,  22 

Illingsworth  v.  Boston  Electric  Light  Co.  (161  Mass.  583)     .     205 

India  Mfg.  Co.,  Sullivan  v.  (113  Mass.  396) 156 

Inness  v.  Boston,  etc.  Railroad  (168  Mass.  433) 96 

Ipswich,  Horton  v.  (12  Cush.  488) 6,45 

Marshall  v.  (110  Mass.  522) 27,34 

Invin  i;.  Alley  (158  Mass.  249) 138 

Jenks  v.  TVilbraham  (11  Gray,  142) 19 

Jenney,  Gibson  v.  (15  Mass.  205) 172 

Jennings  >:.  Tisbury  (5  Gray,  73) 39,  41 

Johanson  v.  Boston  &  Maine  Railroad  (153  Mass.  57)    .       Ill,  114 

Johnson  v.  Boston  Tow-Boat  Co.  (135  Mass.  209)       ....     141 

v.  Lowell  (12  Allen,  572  n  ) 27 


XXX  TABLE    OF   CASES. 

Papre 

Jones  v.  Andover  (9  Pick.  146) 40 

v.  Andover  (10  Allen,  18) 11,12 

v.  Boston  (104  Mass.  75)       30,31 

i:  Boston  &  Albany  Railroad  (157  Mass.  51)       ....     199 

v.  Burford  (1  Times  Law  Rep.  137) 151 

r.  Waltham  (4  Cush.  299) 25,  47,  49,  50 

Joy,  Stevenson  v.  (152  Mass.  45) 44 1  57 

June  v.  Boston  &  Albany  Railroad  (153  Mass.'  79)      .     .     .   96,  110 

Keith  v.  Easton  (2  Allen,  552) 26,  32 

Kellogg,  Scullane  v.  (169  Mass.  544) 171 

Kelly  v.  Blackstone  (147  Mass.  448) 10 

Kenady  v.  Lawrence  (128  Mass.  318) 56,  58,  64 

Kennedy,  McCann  v.  (167  Mass.  23)    ....     142,  154,  169,  170 
Keuney  v.  Ilingham  Cordage  Co.  (168  Mass.  278)      ....     130 

Kidder  v.  Dunstable  (7  Gray,  104)       20 

v.  Dunstable  (11  Gray,  342) ...•••    11,69,70 

Kimball  v.  Boston  (1  Allen,  417) 18 

Kiugsbury  v.  Dedham  (13  Allen,  186) 32 

Knight,  Murray  v.  (156  Mass.  518) 125 

Ladd  v.  New  Bedford  Railroad  (119  Mass.  412) 155 

Searles  v.  (123  Mass.  580) 85 

Lally,  Sullivan  v.  (166  Mass.  265) 170 

Lamoureux  v.  New  York,  etc.  Railroad  (169  Mass.  338)      108,  113, 

115 

Lane  v.  Crombie  (12  Pick.  177) 7 

Lang,  White  v.  (128  Mass.  598) 78 

Larkin  v.  Boston  (128  Mass.  521) 58,  59 

Lawless  v.  Connecticut  River  Railroad  (136  Mass.  1)     ...     140 

Lawrence,  Brown  v.  (120  Mass.  1) 43 

Hughes  v.  (160  Mass.  474) 59 

Kenady  v.  (128  Mass.  318) 56,  58,  64 

v.  New  Bedford  (160  Mass.  227) 49,50 

Noonan  v.  (130  Mass.  161) 60 

Tuttle  v.  (119  Mass.  276) 11 

Williams  v.  (113  Mass.  506  n.) 28 

Led widge  v.  Hathaway  (170  Mass.  348) 200 

Leffingwell  v.  Warren  (2  Black,  599) 136 


TABLE   OF   CASES.  XXxi 

Page 

LeForest  v.  Tolman  (117  Mass.  109) 76,80 

Lehman  v.  Van  Nostrand  (165  Mass.  233) 130 

Leicester,  Mower  v.  (9  Mass.  247) 2 

Leominster,  Davis  v.  (1  Allen,  182) 4,  47,  49 

Leonard  v.  Holyoke  (138  Mass.  78) 66 

Leslie,  Roswell  v.  (133  Mass.  589) 85 

Lexington,  Coggswell  v.  (4  Gush.  307) 27,  34 

Leyden,  Williams  v.  (119  Mass.  237) 21 

Liffin  v.  Beverly  (145  Mass.  549) 62 

Lincoln,  Denison  v.  (131  Mass.  236) 78,83 

Little  u.  Brockton  (123  Mass.  511) 6,21 

Littlejohn  v.  Fitchburg  Railroad  (148  Mass.  478)  .   89,  97,  105,  106 
Livermore  v.  Fitchburg  Railroad  (163  Mass.  132)      .   101,  109,  112 

Locke,  Elmer  v.  (135  Mass.  575) 141 

Loftus  v.  North  Adams  (160  Mass.  161) 9 

Logan  v.  New  Bedford  (157  Mass.  534) 34 

Longtneadow,  Davis  v.  (169  Mass.  551) 19 

Look,  O'Brien  v.  (171  Mass.  36) 167,168 

Lothrop  r.  Fitchburg  Railroad  (150  Mass.  423)      .     .     .     .133,186 

Lowe  v.  Clinton  (133  Mass.  526) 59 

v.  Clinton  (136  Mass.  24) 26 

Lowell,  Alger  v   (3  Allen,  402) 9,21,34,38 

Blake  v.  (143  Mass.  296) 51,  52 

v.  Boston  &  Lowell  Railroad  (23  Pick.  24) 24 

Brady  v.  (3  Cush.  121) 5 

Chase  v.  (149  Mass.  85) 32 

Chase  v.  (151  Mass.  422) 53,  74 

Conners  v.  (158  Mass.  336) 62 

Daniels  v.  (139  Mass.  56) 71 

Drake  r.  (13  Met.  292) 30 

Durgin  v.  (3  Allen,  398) 44 

Gulliue  v.  (144  Mass.  491) 16 

Harwood  v.  (4  Cush.  310) 6,19 

Heland  v.  (3  Allen,  407) 11 

Hixon  v.  (13  Gray,  59) 31 

Hobbs  v.  (19  Pick.  405) 39,42 

Howe  r.  (101  Mass.  99) 52 

Johnson  v.  (12  Allen,  572  n.) .       27 

Raymond  r.  (6  Cush.  524) 24,  70 


XXX11  TABLE   OF   CASES. 

Page 
Lowell,  Rowell  v.  (7  Gray,  100)  .     .     .     .     .     .     .     .     .     .     20,  22 

Shear.  (132  Mass.  187) 58,59,64,196 

Sheren  v.  (104  Mass.  24)      .     .     , 71 

v.  Short  (4  Cush.  275) 24 

Smith  v.  (139  Mass.  336) 44 

v.  Spaulding  (4  Cush.  277) 24 

Tighe  v.  (119  Mass.  472) 15 

Whitney  v.  (151  Mass.  212) 53,  G5 

Winn  v.  (1  Allen,  177) 10 

LudlowMfg.  Co.,  Brady  v.  (154  Mass.  468)      ....      125,142 

Eogers  v.  (144  Mass.  198) 140,  158 

Lund  i>.  Tygnsboro  (11  Cush.  563) 19,21 

Luther  ».  Worcester  (97  Mass.  268) 28 

Lyman  v.  Amherst  (107  Mass.  339) 37,38 

v.  Boston  &  Albany  Railroad  (70  Fed.  Rep.  409)    ...       89 

v.  Hampshire  (138  Mass.  74) 58,  59,  66,  196 

v.  Hampshire  (140  Mass.  311) 9 

Lynch  v.  Allyn  (160  Mass.  248) 132,  134,  197 

v.  Boston  &  Albany  Railroad  (159  Mass.  536)    .     .       137,  138 

Lynn,  Miles  v.  (130  Mass.  398) 60 

Osgood  v.  (130  Mass.  335) 75 

Sargent  v.  (138  Mass.  599)  .     .     .  • 59 

West  v.  (110  Mass.  514) 6,31 

Lynn  &  Boston  Railway,  Cunningham  v.  (170  Mass.  298)    130,  167 

Holland  v.  (144  Mass.  425) 117,119 

Lyon  v.  Cambridge  (136  Mass.  419) 30 

Lyons  v.  Brookline  (119  Mass.  491)      15,20 

v.  Cambridge  (132  Mass.  534) 66,  67 

Mack  v.  Boston  &  Albany  Railroad  (164  Mass.  393)  ....      57 

Macomber  v.  Taunton  (100  Mass.  255) 24,  30 

Madden  v.  Springfield  (131  Mass.  441) 56,60 

Maguire  v.  Fitchburg  Railroad  (146  Mass.  379) 101 

Maher  v.  Boston  &  Albany  Railroad  (158  Mass.  36)    139,  187,  188, 

192 

Mahoneyy.  Boston  (171  Mass.  427) 128 

v.  Dore  (155  Mass.  513) 134 

p.  New  York,  etc.  Railroad  (160  Mass.  573)  139, 163,  170,  182 

Malcolm  v.  Fuller  (152  Mass.  160)  .     .     .      134,  159,  161,  167,  170 


TABLE    OF    CASES.  XXX111 

Page 

Maiden  &  Melrose  Railroad,  Barrett  v.  (3  Allen,  101).  .  .  .  82 
Mauley  v.  Boston  &  Maine  Railroad  (159  Mass.  493)  ...  116 
Mapes-Reeve  Construction  Co.,  Tremblay  v.  (169  Mass.  284) .  171 

Marble  v.  Worcester  (4  Gray  395) 19 

Marden  v.  Boston  &  Albany  Railroad  (159  Mass.  393)  .  .  .  112 
Marlborough,  Coan  v.  (164  Mass.  206) 127 

Hudson  v.  (154  Mass.  218) 35 

Marshall  v.  Ipswich  (110  Mass.  522) 27,34 

Marvin  v.  New  Bedford  (158  Mass.  464) 69,70 

Matteson  v.  Strong  (159  Mass.  407) 78,79 

May  v.  Boston  (150  Mass.  517) 66 

v.  Princeton  (11  Met.  442) 8 

r.  Whittier  Machine  Co.  (154  Mass.  29) 125 

McAuley  v.  Boston  (113  Mass.  503) 28 

McCabe  v.  Cambridge  (134  Mass.  484) 59,66 

McCann  v.  Kennedy  (167  Mass.  23)  ....  142,  154,169,  170 

v.  Waltham  (163  Mass.  344) 128 

McCarthy  v.  Guild  (12  Met.  291) 84 

McCauley  o.  Norcross  (155  Mass.  584) 160 

v.  Springfield  Street  Railway  (169  Masa.  301)  ....  130 
McCreary  v.  Boston  &  Maine  Railroad  (153  Mass.  300)  .  104,  111 
McDongall  v.  Boston  (134  Mass.  149) 61 

v.  Salem  (110  Mass.  21) 15 

McGaffigau  v.  Boston  (149  Mass.  289) 23,53 

McGee  v.  Boston  Cordage  Co.  (139  Mass.  445) 141 

McGowan  v.  Boston  (170  Mass.  384) 27 

McGriffin  v.  Palmer's  Shipbuilding  Co.  (10  Q.  B.  D.  5)  .  143,  146 

McGuiuness  v.  Worcester  (160  Mass.  272) 7 

Mclsaac  v.  Northampton  Electric,  etc.  Co.  (172  Mass.  89)  .  130 

McKay  v.  Hand  (168  Mass.  270)  148 

McKenna  v.  Boston  (131  Mass.  143) 39,42 

McKimble  v.  Boston  &  Maine  Railroad  (139  Mass.  542)  .  98,  100 

v.  Boston  &  Maine  Railroad  (141  Mass.  463) 99 

McLean  v.  Chemical  Paper  Co.  (165  Mass.  5) 186 

McXulty  v.  Cambridge  (130  Mass.  275) 58,60 

Md'heer.  Scully  (163  Mass.  216) 131,153,160,171 

Mears  v.  Boston  &  Maine  Railroad  (163  Mass.  150)  .  139,  187,  188 
Mechanics' Mills,  Ryalls  r.  (150  Mass.  190)  .  123,124,195,199 
Mellorr.  Merchants'  Mfg.  Co.  (150  Mass.  362)  .  .  .  123,133 

c 


XXXIV  TABLE   OF   CASES. 

Page 
Menard  v.  Boston  &  Maine  Railroad  (150  Mass.  386)      .       113,114 

Meiidon,  Howard  v.  (117  Mass.  585) 36 

Merchants'  Mfg.  Co.,  Mellor  v.  (150  Mass.  362)  .  .  .  123,133 
Merchants',  etc.  Transportation  Co.,  Clark  v.  (151  Mass.  352)  124 

Merrick  Thread  Co.,  Atkins  v.  (142  Mass.  431) 156 

Merrill  v.  Bradford  (110  Mass.  505) 69,70 

v.  Eastern  Railroad  (139  Mass.  238) 93,  97 

v.  Eastern  Railroad  (139  Mass.  252)       100 

v.  Wilbraham  (11  Gray,  154) 51 

Methodist  Religious  Society,  Mulchey  v.  (125  Mass.  487)  .  .  201 
Metropolitan  Railroad,  Commonwealth  v.  (107  Mass.  236)  .  90 

Woodman  v.  (149  Mass.  335) 51 

Miles  v.  Lynn  (130  Mass.  398) 60 

Milford,  Day  v.  (5  Allen,  98) 30 

Mitchell  v.  Clapp  (12  Cush.-278) 76 

v.  Worcester  (129  Mass.  525) 66,  67 

Montague,  Cook  v.  (115  Mass.  571) 32 

Moody  v.  Hamilton  Mfg.  Co.  (159  Mass.  70) 134 

Moranr.  Palmer  (162  Mass.  196) 26 

Morey  v.  Gloucester  Street  Railway  (171  Mass.  164)      .     .    .    119 

Morse  v.  Boston  (109  Mass.  446) 28 

v.  Stocker  (1  Allen,  150) 43 

Vegiuan  v.  (160  Mass.  143) 195 

Mower  v.  Leicester  (9  Mass.  247) 2 

Mulcahey  v.  Washburn  Car  Wheel  Co.  (145  Mass.  281)  .  .  188 
Mulchey  v.  Methodist  Religious  Society  (125  Mass.  487)  .  .  201 
Mullen  v.  Springfield  Street  Railway  (164  Mass.  450)  ...  120 

Munn  v.  Reed  (4  Allen,  431) 78,79,80 

Murdock  v.  Warwick  (4  Gray,  178) 8 

Murphy  v.  Boston  &  Albany  Railroad  (167  Mass.  64)    .     .     .     141 

v.  Gloucester  (105  Mass.  470) 34,  35 

v.  Worcester  (159  Mass.  546) 45 

Murray  v.  Fitchburg  Railroad  (165  Mass.  448) 101 

v.  Knight  (156  Mass.  518) 125 

Myers  v.  Springfield  (112  Mass.  489) 37 

Nahant,  Fogg  v.  (98  Mass.  578) 14 

Nash  v.  South  Hadley  (145  Mass.  105) 65,67 

Nason  r.  Boston  (14  Allen,  508) 27 


TABLE    OF   CASES.  XXXV 

Page 

Natick,  Adams  v.  (13  Allen,  429) .    33,  34,  36 

Hoeyu.  (153  Mass.  528) 46 

Nay,  Hatt  v.  (144  Mass.  186) 135 

Neal  v.  Boston  (160  Mass.  518) 71 

O'Connor  v.  (153  Mass.  281) 143,167 

Needham,  Weeks  v.  (156  Mass.  289) 72,  73 

New  Bedford,  Lawrence  v.  (160  Mass.  227)  .     .....     49,50 

Logan  v.  (157  Mass.  534) 34 

Marvin  v.  (158  Mass.  464) 69,  70 

Norton  v.  (166  Mass.  48) 127 

Piercer.  (129  Mass.  534) 29 

New  Bedford  Railroad,  Laddv.  (119  Mass.  412) 155 

Newbury,  Harris  v.  (128  Mass.  321) 57 

Newburyport,  Sawyer  v.  (157  Mass.  430) 7 

New  England  Railroad,  Phelpsr.  (172  Mass.  98) 101 

New  England  Telephone,  etc.  Co.,  Gardner  r.  (170  Mass.  156)  167 
New  Haven  &  Northampton  Co.,  Copley  v.  (136  Mass.  6)  114,  116 
New  Jersey  Steel  &  Iron  Co.,  Daly  v.  (155  Mass.  1)  190,  191,  194, 

199 

Newton,  Arey  v.  (148  Mass.  598) 22,  26 

Aston  v.  (134  Mass.  507) 26,39,41,60 

v.  Worcester  (169  Mass.  516) 29 

New  York  &  N.  E.  Railroad,  Browne  ».  (158  Mass.  247)      .    .     186 

Clare  v.  (167  Mass.  39) 141 

Clare  r.  (172  Mass.  211) 90,107,124,125 

Davis  v.  (143  Mass.  301) 80 

Gleason  v.  (159  Mass.  68) 130,  155 

Mahoney  ?;.  (160  Mass.  573) 139, 163,  170,  182 

Ramsdell  v.  (151  Mass.  245)       .     .     136, 181, 182,  184, 192, 194 
New  York,  N.  H.  &  H.  Railroad,  Bagley  v.  (165  Mass.  160)      .  Ill 

Coffee  v.  (155  Mass.  21) 149,  152 

Dacey  v.  (168  Mass.  479) 138 

Davis  v.  (159  Mass.  532)  ....  134,  138,  139,  167,  170,  176 

Ellsbury  v.  (172  Mass.  130) 130 

Gunn  v.  (171  Mass.  417) 145 

Hicks  v.  (164  Mass.  424) 89,  93 

Lamoureux  v.  (169  Mass.  338) 108,113,115 

Nihillv.  (167  Mass.  52) 139 

Shear.    .  198 


XXXVI  TABLE    OF    CASES. 

Page 
New  York,  N.  H.  &  IT.  Railroad,  Stewart  r.  (170  Mass.  430)  .     Ill 

Sullivan  v.  (154  Mass.  524) 110,116 

Tumaltyv.  (170  Mass.  164) 101 

Wallace  v.  (165  Mass.  236) 101 

Young  v.  (171  Mass.  33) 95,  97 

New  York,  P.  &  B.  Railroad,  Clark  v.  (160  Mass.  39)  106, 127,  184, 

190 

Engel  v.  (160  Mass.  260) 150,151,153 

Nihill  v.  New  York,  etc.  Railroad  (167  Mass.  52) 139 

Noonan  v.  Lawrence  (130  Mass.  161) 60 

Norcross,  McCauley  v.  (155  Mass.  584) 160 

Norman  Paper  Co.,  Thompson  v.  (169  Mass.  416)      .     .       130,142 

North  Adams,  Loftus  v.  (160  Mass.  161) 9 

Northampton,  Dietrich  v.  (138  Mass.  14) 18 

Haw ksv.  (116  Mass.  420) 49 

Northampton  Electric,  etc.  Co.,  Mclsaac  v.  (172  Mass.  89)      .     130 

North  Audover,  Bodwell  v.  (1 10  Mass.  511  n.)       45 

Higgins  v.  (168  Mass.  251) 65 

Northbridge,  Titus  v.  (97  Mass.  258) 13 

North  Bridgewater,  Howard  v.  (16  Pick.  189) 26 

Northfield,  Reed  v.  (13  Pick.  94) 10,  53 

Sawyer  v.  (7  Cush.  490) 47 

Norton  v.  Eastern  Railroad  (113  Mass.  366) 110 

t?.  New  Bedford  (166  Mass.  48) 127 

Tisdale  v.  (8  Met.  388) 19 

Norwood,  Flanders  v.  (141  Mass.  17) 25,  45 

v.  Somerville  (159  Mass.  105) 10,  36 

Norwood  Engineering  Co.,  Flaherty  v.  (172  Mass.  134)  ...    137 
Noyes  v.  Gardner  (147  Mass.  505) 4,  53 

Oakham,  Harwood  v.  (152  Mass.  421) 27 

O'Brien  v.  Look  (171  Mass.  36) 167, 168 

v.  Rideout  (161  Mass.  170) 167,170 

v.  Staples  Coal  Co.  (165  Mass.  435) 130 

O'Connor  v.  Neal  (153  Mass.  281) 143,167 

v.  Whittall  (169  Mass.  563) 130, 143 

O'Donnellw.  Pollock  (170  Mass.  441)' 81,82 

O'Keefe  v.  Brownell  (156  Mass.  131) 126,144,192 

Old  Colony  Railroad,  Brady  v.  (162  Mass.  408) 101 


TABLE    OF   CASES.  XXX Vli 

Page 
Old  Colony  Railroad,  Buckley  v.  (161  Mass.  26)    .....       99 

Chisholm  v.  (159  Mass.  3) 93 

Dacey  v.  (153  Mass.  112) 106,127,178,190 

Debbins  v.  (154  Mass.  402) 116 

Dickerman  v.  (157  Mass.  52) 199 

Donahoe  v.  (153  Mass.  356) 176,  177,  196 

Foss  v.  (170  Mass.  168) 140 

Perry  v.  (164  Mass.  296) 171,180 

Steffe  v.  (156  Mass.  262)        139,  174,  175,  198 

Sullivan  v.  (153  Mass.  118) 139 

Trask  v.  (156  Mass.  298) 150,  151 

Tyler  r.  (157  Mass.  336)  . 101 

Tyndale  v.  (156  Mass.  503) 138,  139 

O'Leary,  O'Neilr.  (164  Mass.  387) 165,167 

Olson  «;.  Worcester  (142  Mass.  536) 54,  74 

O'Maley  v.  South  Boston  Gas  Light  Co.  (158  Mass.  135)     126,  129, 

130,  131,  143,  155 

O'Neil  v.  O'Leary  (164  Mass.  387) 165,  167 

Orange,  Puffer  v.  (122  Mass.  389) 33,35 

Osgood  v.  Lynn  (130  Mass.  335) 75 

Overman  Wheel  Co.,  Griffin  v.  (61  Fed.  Rep.  568)     .     .       135,  137 

Paine  v.  Brockton  (138  Mass.  564) 44 

Palmer  v.  Andover  (2  Cush.  600) 7,  22 

Moran  t;.  (162  Mass.  196) 26 

Sanders  v.  (154  Mass.  475) 46,73 

Palmer's  Shipbuilding  Co.,  McGriffin  v.  (10  Q.  B.  D.  5)  143,  146 
Parker,  Galvin  v.  (154  Mass.  346) 77,  81 

p.  Springfield  (147  Mass.  391) 10 

Parsons,  Boulester  «?.  (161  Mass.  182) 78,79 

Pearson  Cordage  Co.,  Ross  v.  (164  Mass.  257)  ....  143,  155 

Peaslee  v.  Fitchburg  Railroad  (152  Mass.  155) 106 

Pelham,  Aldrich  v.  (1  Gray,  510) 69,  70 

Blair  u.  (118  Mass.  420) 69 

Perkins  v.  Boston  &  Albany  Railroad  (90  Fed.  Rep.  321)  .  .  90 
Perry  r.  Old  Colony  Railroad  (164  Mass.  296)  .  .  .  .  171,  180 

Petersham,  Brooks  v.  (16  Gray,  181) 7,71 

Pettee  Machine  Works,  Foley  v.  (149  Mass.  294) 195 

Pettingell  i-.  Chelsea  (161  Mass.  368) 128,182 


XXXV111  TABLE   OP   CASES. 

Page 

Phelps  v.  New  England  Railroad  (172  Mass.  98) 101 

Pierce  v.  New  Bedford  (1*29  Mass.  534) 29 

Popplewell  v.  (10  Cush.  509) 77 

Pinkham  v.  Topsfield  (104  Mass.  78) 27 

Plumley  v.  Birge  (124  Mass.  57) 78,79 

Dolphin?;.  (167  Mass.  167) 147 

Pollard  v.  Woburn  (104  Mass.  84) 6,49 

Pollock,  O'Donnellt'.  (170  Mass.  441) 81,82 

v.  Eastern  Railroad  (124  Mass.  158)  110 

Pomeroy  v.  Westfield  (154  Mass.  462) 13,  21 

Popplewell  v.  Pierce  (10  Cush.  509) 77 

Porter,  Stoughton  v.  (13  Allen,  191) 24 

Post  v.  Boston  (141  Mass.  189) 54,73 

Powers  v.  Boston  (154  Mass.  60) 23 

v.  Fall  River  (168  Mass.  60) 132,139 

Pratt  v.  Amherst  (140  Mass.  167) 22,23,24,36 

v.  Weymouth  (147  Mass.  245)  20,  30,  32 

Prendible  v.  Connecticut  River  Mfg.  Co.  (160  Mass.  131)  149,  167 

Prentissv.  Boston  (112  Mass.  43) 49,51 

Prescott  v.  Eastern  Railroad  (113  Mass.  370  n.)  .,  ...  110 

Pressey  v.  Wirth  (3  Allen,  191) 77,86 

Princeton,  May  v.  (11  Met.  442) 8 

Provincetown,  Ghenn  v.  (105  Mass.  313) 23 

Snow  v.  (120  Mass.  580) 6 

Puffer  v.  Orange  (122  Mass.  389) 33,35 

Purple  U.Greenfield  (138  Mass.  1) 24,34,53 


Quartermain,  Thomas  v.  (18  Q.  B.  D.  685) 133 

Quincy,  Harris  v.  (171  Mass.  472) 63 

Ramsdell  v.  New  York,  etc.  Railroad  (151  Mass.  245)  .  136,  181, 

182,  184,  192,  194 

Randolph,  Bigelow  v.  (14  Gray,  541)  .  .  . 3 

Rooney  v.  (128  Mass.  580) 45,  46,  73 

Raymond  B.  Haverhill  (168  Mass.  382) 19 

v.  Hodgson  (161  Mass.  184) 78,  79 

v.  Lowell  (6  Cush.  524) 24,  70 

Reed  v.  Boston  &  Albany  Railroad  (164  Mass.  129)       ...     182 


TABLE    OF   CASES.  XXXIX 

Page 
Reed,  Munnv.  (4  Allen,  431) 78,  79,  80 

v.  Northfield  (13  Pick.  94) 10,53 

Regan  r.  Donovan  (159  Mass.  1) 151 

Reynolds  v.  Barnard  (168  Mass.  226) 148,  149,  166 

Richards  v.  Enfield  (13  Gray,  344)  20 

Richardson  r.  Boston  (156  Mass.  145) 33 

Rideout,  O'Brien  v.  (161  Mass.  170) 167,170 

Riou  v.  Rockport  Granite  Co.  (171  Mass.  162)  .  .  .  167,168 

Roach  v.  Somerville  (131  Mass.  189) 64 

Roberts  v.  Douglas  (140  Mass.  129) 59,60 

Rochefort  v.  Attleborough  (154  Mass.  140) 54 

Rockport,  Babson  v.  (101  Mass.  93) 15,  20 

Rockport  Granite  Co.,  Riou  v.  (171  Mass.  162)  .  .  .  167,168 
Rogers  v.  Ludlow  Mfg.  Co.  (144  Mass.  198)  ....  140,  158 

Rood,  Whitcomb  v.  (20  Vt.  49) 207 

Roouey  v.  Randolph  (128  Mass.  580) 45,46,73 

Roseback  v.  JEtna.  Mills  (158  Mass.  379) 161,167 

Ross  v.  Pearson  Cordage  Co.  (164  Mass.  257)  ....  143,  155 

Roswell  v.  Leslie  (133  Mass.  589) 85 

Rouse  v.  Somerville  (130  Mass.  361) 4 

Rowell  v.  Lowell  (7  Gray,  100) 20,  22 

Roxbury,  Barber  v.  (11  Allen,  318) 22,29 

Gilbert  v.  (100  Mass.  185) 27 

Russell,  Tinker  v.  (14  Pick.  279) 51 

Rutland,  Bigelow  v.  (4  Cush.  247) 10 

Ryalls  v.  Mechanics'  Mills  (150  Mass.  190)  .  .  123,  124,  195,  199 

Salem,  Dalton  v.  (131  Mass.  551) 60 

Dalton  v.  (136  Mass.  278) 58 

Dalton  v.  (139  Mass.  91)       64 

Hunt  v.  (121  Mass.  294) 6,16 

McDougall  v.  (110  Mass.  21) 15 

Shallow  r.  (136  Mass.  136) 59 

Sparhawk  v.  (1  Allen,  30) 30,  33,  34 

Stamen  v.  (145  Mass.  476) 51 

Stickney  v.  (3  Allen,  374) 16,17,38 

Samuelson,  Heske  v.  (12  Q.  B.  D.  30) 144 

Sanders  v.  Palmer  (154  Mass.  475) 46,73 

Sanford,  Commonwealth  v.  (12  Gray,  174) 102 


xl  TABLE   OF   CASES. 

Page 

Sargent  v.  Lynn  (138  Mass.  599) 59 

Saunders  v.  Boston  (167  Mass.  595) 66 

Savory  v.  Haverhill  (132  Mass.  324) 61 

Sawyer  v.  Newburyport  (157  Mass.  430) 7 

v.  Northfield  (7  Cush.  490) 47 

Scaulan  v.  Boston  (140  Mass.  84) 4 

Scannal  v.  Cambridge  (163  Mass.  91) 34,35 

Schoonmaker  v.  Wilbraham  (110  Mass.  134) 6,69 

Scituate,  Damon  v.  (119  Mass.  66)        11 

Scullane  v.  Kellogg  (169  Mass.  544) 171 

Scully,  McPhee  i:  (163  Mass.  216)        ....     131,153,160,171 

Seaconnet  Mills,  Gagnon  v.  (165  Mass.  221) 170 

Searles  v.  Ladd  (123  Mass.  580) 85 

Sears  v.  Dennis  (105  Mass.  310)       21 

Seekonk,  Hill  v.  (119  Mass.  85) 6 

Shallow  v.  Salem  (136  Mass.  136) 59 

Sharon,  Carberry  v.  (166  Mass.  32) 62,  65 

Shea*;.  Boston  &  Maine  Railroad  (154  Mass.  31)  .     .     .      139,186 

v.  Lowell  (132  Mass.  187) 58,59,64,196 

v.  New  York,  etc.  Railroad 1 98 

v.  Wellington  (163  Mass.  364) 147,163,169 

Shearer,  Buddington  v.  (20  Pick.  477) 81,84,86 

Shedd,  Guild?;.  (150  Mass.  255) 43 

Shepard  v.  Boston  &  Maine  Railroad  (158  Mass.  174)    ...     139 

Shepardson  v.  Colerain  (13  Met.  55) 20 

Shepherds  Chelsea  (4  Allen,  113) 20,29 

Sheren  v.  Lowell  (104  Mass.  24) 71 

Sherman  i?.  Favour  (1  Allen,  191) 77,82,83,84 

Short,  Lowell  v.  (4  Cash.  275) 24 

Smith  v.  Baker  ([1891]  A.  C.  325) 133,145 

v.  Conway  (121  Mass.  216) 11 

Dean  v.  (169  Mass.  569) 171 

v.  Gardner  (11  Gray,  418) 11 

Green  v.  (169  Mass.  485) 164,187,188 

v.  Lowell  (139  Mass.  336) 44 

v.  Smith  (2  Pick.  621) 7 

v.  Wakefield  (105  Mass.  473) 25,40 

v.  Wendell  (7  Cush.  498) 26 

Smith  Iron  Co.,  Allen  v.  (160  Mass.  557) 145,155 


TABLE   OF   CASES.  xll 

Page 

Snow  v.  Adams  (1  Cush.  443) .  20,  22,  24,  26 

v.  Pro vincetown  (120  Mass.  580) 6 

Somerset,  Hinckley  v.  (145  Mass.  .326) 52,74 

Somerville,  Brooks  v.  (106  Mass.  271) 23,51,52 

Norwood  v.  (159  Mass.  105) 10,36 

Roach  v.  (131  Mass.  189) 64 

Rouse  v.  (130  Mass.  361) 4 

South  Boston  Gas  Light  Co.,  O'Maley  v.  (158  Mass.  135)   126,  129, 

130,  131,  143,  155 

South  Boston  Iron  Co.,  Spicer  r.  (138  Mass.  426) 155 

Southbridge,  Whitford  v.  (119  Mass.  564) 20,44 

South  Hadley,  Bliss  v.  (145  Mass.  91) 16 

Nash  v.  (145  Mass.  105) 65,67 

Sparhawk  v.  Salem  (1  Allen,  30) 30,33,34 

Spauldiug,  Lowell  v.  (4  Cush.  277) •    .     .     .     .       24 

Spellman  u.  Chicopee  (131  Mass.  443) 27,  58 

Spicer  v.  South  Boston  Iron  Co.  (138  Mass.  426) 155 

Spooner  v.  Freetown  (139  Mass.  235) 60,72 

Springfield,  Barton  v.  (110  Mass.  131) 10 

Fleming  v.  (154  Mass.  520) 54 

Madden  v.  (131  Mass.  441) 56,60 

Myers  v.  (112  Mass.  489) 37 

Parker  v.  (147  Mass.  391) 10 

Stautonv.  (12  Allen,  566) 27 

Springfield  Street  Railway,  McCauley  v.  (169  Mass.  301)  .     .     130 

Mullen  v.  (164  Mass.  450) 120 

Sprow  v.  Boston  &  Albany  Railroad  (163  Mass.  330)      .     .     .     Ill 

Stanton  v.  Salem  (145  Mass.  476) 51 

u.Springfield  (12  Allen,  566) 27 

Staples  Coal  Co.,  O'Brien  ».  (165  Mass.  435) 130 

Steele  v.  Boston  (128  Mass.  583) 44 

Steffe  v.  Old  Colony  Railroad  (156  Mass.  262)      139,  174,  175,  198 

Stevens  v.  BoxfOrd  (10  Allen,  25) 6 

Harris  v.  (31  Vt.  79) 96 

Stevenson  v.  Joy  (152  Mass.  45) 44,57 

Stewart  v.  New  York,  etc.  Railroad  (170  Mass.  430)  .     .    .     .     Ill 

Stickncy  v.  Salem  (3  Allen,  374) 16,17,38 

St.  Jean  v.  Boston  &  Maine  Railroad  (170  Mass.  213)    .     .     .     140 
Stocker,  Morse  v.  (1  Allen,  150) 43 


Xlii  TABLE    OP    CASES. 

Page 

Stockwell  v.  Fitch  burg  (110  Mass.  305) 33,41 

Stoddard  v.  Wiuchester  (154  Mass.  149) 54 

Stone  0.  Attleborough  (140  Mass.  328) 33 

Hayden  v.  (112  Mass.  346) 39,42 

v.  Hubbardston  (100  Mass.  49) 14,28 

Stoughton  v.  Porter  (13  Allen,  191) 24 

Strong,  Matteson  v.  (159  Mass.  497) 78,79 

Stuart,  Burns  v.  (168  Mass.  19) 84 

Suffolk  Mfg.  Co.,  Bowers  0.  (4  Cash.  332) 42 

Sugden,  Floyd  v.  (134  Mass.  563) 158 

Sullivan  r.  Boston  &  Albany  Railroad  (156  Mass.  378)  .     .     .     104 

v.  Fitchburg  Railroad  (161  Mass.  125) 130 

v.  India  Mfg.  Co.  (113  Mass.  396) 156 

v.  Lally  (166  Mass.  265) 170 

t>.  New  Yorlt,  etc.  Railroad  (154  Mass.  524).     .     .      110,  116 

v.  Old  Colony  Railroad  (153  Mass.  118) 139 

Swansey,  Bosworth  v.  (10  Met.  363) 11 

Taggartr.  Fall  River  (170  Mass.  325) 127 

Talbotr.  Taunton  (140  Mass.  552) 22 

Tarrant  v.  Webb  (18  C.  B.  797) 158 

Taunton,  Macomber  v.  (100  Mass.  255) 24,30 

Talbot  ».  (140  Mass.  552) 22 

Taylor  0.  Boston  Water  Power  Co.  (12  Gray,  415)  .  .  .  39,41 

v.  Woburn  (130  Mass.  494) 42,43,60,65,67 

Tern pleton,  Wright  v.  (132  Mass.  49) 14 

Tenantyr.  Boston  Mfg.  Co.  (170  Mass.  323) 130 

The  Earl  of  Dudley,  Griffiths  r.  (9  Q.  B.  D.  357) 129 

Thomas  v.  Quartermain  (18  Q.  B.  D.  685) 133 

Whittemore  v.  (153  Mass.  347  ) 82 

Thompson  v.  Boston  &  Main/3  Railroad  (153  Mass.  391)  .  .  139 

v.  Bridgewater  (7  Pick.  188) 6,  7,  21 

».  Norman  Paper  Co.  (169  Mass.  416) 130,  142 

Thyng  v.  Fitchburg  Railroad  (156  Mass.  13)  138, 145, 156,  172, 173, 

178,  180 

Tighe  v.  Lowell  (119  Mass.  472) 15 

Tilton  i>.  Boston  &  Albany  Railroad  (169  Mass.  253)  ...  101 

Tinker  v.  Russell  (14  Pick.  279) 51 

Tinkham,  Hathaway  v.  (148  Mass.  85) 78,  83 


TABLE   OP   CASES.  xliii 

Page 

Tisbury,  Jennings  v.  (5  Gray,  73) .  39,41 

Tisdale  v.  Bridgewater  (167  Mass.  248) 34,35 

v.  Norton  (8  Met.  388) 19 

Titus  v.  Northbridge  (97  Mass.  258) 13 

Tolman,  Le  Forest  v.  (117  Mass.  109) 76,80 

Toomey  v.  Donovan  (158  Mass.  232) 124,202 

Topsfield,  Pinkham  v.  (104  Mass.  78) 27 

Trask  v.  Old  Colony  Railroad  (156  Mass.  298)  .  .  .  .150, 151 
Tremblay  v.  Mapes-Reeve  Construction  Co.  (169  Mass.  284)  .  171 
Trimble  v.  Whitier  Machine  Works  (172  Mass.  150)  ...  145 
Tumalty  v.  New  York,  etc.  Railroad  (170  Mass.  164)  ...  101 
Tuttle  v.  Fitchburg  Railroad  (152  Mass.  42) 114 

v.  Holyoke  (6  Gray,  447) 19 

».  Lawrence  (119  Mass.  276) 11 

Tyler  v.  Old  Colony  Railroad  (157  Mass.  336) 101 

Tyndale  r.  Old  Colony  Railroad  (156  Mass.  503)  ....  138,  139 
Tyngsborough,  Blood  v.  (103  Mass.  509) 6 

Lundv.  (11  Cush.  563) 19,21 

Upton,  Duffy  v.  (113  Mass.  544) 182 

Van  Nostrand,  Lehman  v.  (165  Mass.  233) 130 

Veale  v.  Boston  (135  Mass.  187) 39,  41 

Veginan  v.  Morse  (160  Mass.  143) 195 

Veno  t>.  Waltham  (158  Mass.  279) 62 

Vermont  &  Mass.  Railroad,  Commonwealth  v.  (108  Mass.  7)  90,  97, 

98 
Vinal  v.  Dorchester  (7  Gray,  421) 29,  50 

Wakefield,  Smith  v.  (105  Mass.  473) 25,  40 

Wallace  v.  New  York,  etc.  Railroad  (165  Mass.  236)  ...  101 
Walsh  v.  Boston  &  Maine  Railroad  (171  Mass.  52)  .  110, 113,  115 

Waltham,  Clark  v.  (128  Mass.  567) 44 

Connollys  (156  Mass.  368) 127,160,203 

Dohertyr.  (4  Gray,  596) 37 

Frost  v.  (12  Allen,  85) 10 

Jones  v.  (4  Cush.  299) 25,47,49,50 

McCann  v.  (163  Mass.  344) 128 

Veno  v.  (158  Mass.  '279) 62 

Wormwood  v.  (144  Mass.  184) 66 


xliv  TABLE   OF   CASES. 

Page 

Wampanoag  Mills,  Gouin  t;.  (172  Mass.  222) 171 

Warner  v.  Holyoke  (112  Mass.  362) 26,35 

Warren,  Leffingwell  v.  (2  Black,  599) 136 

Warwick,  Murdock  v.  (4  Gray,  178) 8 

Washburn,  Burns  v.  (160  Mass.  457) 148,169 

v.  Eastern 32 

Washburn  &  Moen  Mfg.  Co.,  Carrigan  v.  (170  Mass.  79)    .     .     132 

Donahue  v.  (169  Mass.  574) 130 

Gustaf sen  v.  (153  Mass.  468) 139,192,194,199 

Washburn  Car  Wheel  Co.,  Mulcahey  v.  (145  Mass.  281)     .     .     188 
Washington  Mills  Co.,  Goodridge  v.  (160  Mass.  234)     .     .     .     130 

Waterville,  Wood  v.  (4  Mass.  422) 18 

Weare  v.  Fitchburg  (110  Mass.  334) 6,10 

Webb,  Tarrant  v.  (18  C.  B.  797) 158 

Webb  Granite,  etc.  Co.,  Beauregarde  v.  (160  Mass.  201)     .     .     125 

Weblinv.  Ballard  (17  Q.  B.  D.  122) 182 

Webster  v.  Fitchburg  Railroad  (161  Mass.  298)     .     .     .     95,96,97 

Weeks  v.  Needham  (156  Mass.  289) 72,73 

Welch  v.  Gardner  (133  Mass.  529) 59,  67 

v.  Grace  (167  Mass.  590) 147,  189 

Wellington,  Shear.  (163  Mass.  364) 147,163,169 

Welsh  v.  Amesbury  (170  Mass.  437) 52,  53 

Wendell,  Smith  v.  (7  Cush.  498)       26 

West  r.  Lynn  (110  Mass.  514) 6,31 

West  End  Railway,  Creamer  v.  (156  Mass.  320)   .     .     .      120,121 

Dobbins  v.  (168  Mass.  556) 57 

Fallen  v.  (171  Mass.  249) 180 

Galbraith  v.  (165  Mass.  572) 120 

Westfield,  Pomeroy  v.  (154  Mass.  462) 13,21 

Weston,  Dudley  t--.  (1  Met.  477) 72 

Weymouth,  Gardner  v.  (155  Mass.  595) 62 

Pratt  v.'(U7  Mass.  245) 20,30,32 

Wheeler  v.  Framingham  (12  Cush.  287) 72 

Whitcomb  v.  Rood  (20  Vt.  49) 207 

Whiter  Boston  (122  Mass.  491) 36 

v.  Lang  (128  Mass.  598) 78 

Whitford  v.  Southbridge  (119  Mass.  564) 20,44 

Whitier  Machine  Works,  Trimble  v.  (172  Mass.  150)     .     .     .     145 
Whitman  v.  Groveland  (131  Mass.  553)    ...      39,  48,  56,  60,  61 


TABLE   OF   CASES.  XlV 

Page 

Whitney  v.  Lowell  (151  Mass.  212)       .     .     53,  65 

Whittaker  v.  Bent  (167  Mass.  588)       142,  154,  168 

v.  Boston  &  Maine  Kailroad  (7  Gray,  98) Ill 

Whittall,  O'Connor  v.  (169  Mass.  563) 130,143 

Whittemore  v.  Thomas  (153  Mass.  347) 82 

Whittier  Machine  Co.,  May  v.  (154  Mass.  29) 125 

Wilbraham,  Jenksr.  (11  Gray,  142) 19 

Merrill  v.  (11  Gray,  154) 51 

Schoonmakerr.  (110  Mass.  134) 6,69 

Willcutt,  Carroll  v.  (163  Mass.  221) 143,  160,  171 

Willetts  v.  Hart  ([1892]  2  Q.  B.  92) 147 

Willey  v.  Boston  Electric  Light  Co.  (168  Mass.  40)   .    146, 154, 188 

Williams  v.  Lawrence  (113  Mass.  506  n.) 28 

u.Leyden  (119  Mass.  237) 21 

Williamstown,  Canning  v.  ( 1  Cash.  451) 19 

Wilmington,  Commonwealth  v.  (105  Mass.  599) 33 

Wilson  v.  Boston  (117  Mass.  509) 39,43,47 

v.  Charlestown  (8  Allen,  137) 6,  10,  11,  13 

Winchester,  Stoddard  t-.  (154  Mass.  149) 54 

Winn  v.  Lowell  (1  Allen,  177) 10 

Wirth,  Pressey  v.  (3  Allen,  191) 77,86 

Woburu,  Eaton  v.  (127  Mass.  270) 18 

Pollard  v.  (104  Mass.  84) 6,49 

Taylor  v.  (130  Mass.  494) 42,43,60,65,67 

Wood  v.  Waterville  (4  Mass.  422) 18 

Woodcock  v.  Worcester  (138  Mass.  268) 71 

Woodman  v.  Metropolitan  Kailroad  (149  Mass.  335)  ....       51 

Woods  v.  Boston  (121  Mass.  337) 6 

Worcester,  Billings  v.  (102  Mass.  329) 25,  27,  45,  53 

Daily  v.  (131  Mass.  432) 35 

Drury  v.  (21  Pick.  44)       .     .     . 39, 40 

Edwards  v.  (172  Mass.  104) 9,72 

Grogan  v.  (140  Mass.  227) 60 

Luther  v.  (97  Mass.  268) 28 

Marble  v.  (4  Gray,  395) 19 

McGuinness  v.  (160  Mass.  272) 7 

Mitchell  v.  (129  Mass.  525) 66,  67 

Murphy  v.  (159  Mass.  546) 45 

Newton  v.  (169  Mass.  516) 29 


TABLE   OF   CASES. 

Page 
Worcester,  Olson  v.  (142  Mass.  536) 54,74 

Woodcock  v.  (138  Mass.  268) 71 

Wormwood  v.  Waltham  (144  Mass.  184) 66 

Wright  v.  Boston  &  Maine  Railroad  (129  Mass.  440)  ...  110 

v.  Templetcm  (132  Mass.  49) 14 

Young  v.  Douglas  (157  Mass.  383)        60 

v.  New  York,  etc.  Railroad  (171  Mass.  33)      ....     95,  97 
v.  Yarmouth  (9  Gray,  386) 50,  204 

Zeiglerr.  Day  (123  Mass.  152) 158 


TABLE   OF   STATUTES. 


Public  Statutes,  chapter  52,  section  17 1 

chapter  52,  section  18 2 

chapter  52,  section  19 54 

chapter  52,  section  20 62 

chapter  52,'  section  21 63 

chapter  52,  section  22 67 

chapter  73,  section  6 116 

chapter  102,  section  93 76 

chapter  109,  section  12 204 

chapter  112,  section  163 107  D. 

chapter  112,  section  212 87 

chapter  112,  section  213 107 

chapter  161,  section  7 75  n. 

Acts,  1883,  chapter  221 205  n. 

1883,  chapter  243 88 

1886,  chapter  140 118 

1887,  chapter  270,  title 122 

1887,  chapter  270,  section  1 136 

1887,  chapter  270,  section  1,  clause  1 140 

1887,  chapter  270,  section  1,  clause  2 158 

1887,  chapter  270,  section  1,  clause  3 171 

1887,  chapter  270,  section  2 185 

1887,  chapter  270,  section  3 I92 

1837,  chapter  270,  section  4 200 

1887,  chapter  270,  section  5 202 

1888,  chapter  155 193 

1890,  chapter  173,  section  1 107  n. 


xlviii  TABLE   OF   STATUTES. 

Page 
Acts,  1892,  chapter  260,  section  1 183 

1892,  chapter  260,  section  2 192 

1893,  chapter  359,  section  1 152,  n.  3 

1894,  chapter  389 55 

1894,  chapter  499 158 

1894,  chapter  508,  section  6 129,  n.  2 

1896,  chapter  540 28 

1897,  chapter  416  „ 206 

1897,  chapter  491,  section  1 179 

1897,  chapter  491,  section  2 176 

1898,  chapter  565 207 


STATUTORY   TORTS 


IN 


MASSACHUSETTS. 


PART    I. 

THE  LIABILITY  OF  MUNICIPAL  CORPORATIONS. 

PUBLIC  STATUTES,  CHAPTER  52,  SECTION  17.  If  the 
life  of  a  person  is  lost  by  reason  of  a  defect  or  want  of 
repair  of  a  highway,  town  way,  causeway,  or  bridge, 
or  for  want  of  suitable  rails  on  such  way  or  bridge,  the 
county,  town,  or  person  by  law  obliged  to  repair  the 
same  shall  be  liable  in  damages  not  exceeding  one 
thousand  dollars,  to  be  assessed  with  reference  to  the 
degree  of  culpability  of  the  count}',  town,  or  person 
liable,  and  recovered  in  an  action  of  tort,  commenced 
within  one  year  from  the  injury  causing  the  death,  by 
the  executor  or  administrator  of  the  deceased  person, 
for  the  use  of  the  widow  and  children  of  the  deceased 
in  equal  moieties,  or,  if  there  are  no  children,  to  the  use 
of  the  widow,  or,  if  no  widow,  to  the  use  of  the  next 
of  kin :  provided,  that  the  county,  town,  or  person  had 
previous  reasonable  notice  of  the  defect  or  want  of 
repair  of  such  way  or  bridge. 


2  STATUTORY   TORTS   IN   MASSACHUSETTS. 

SECTION  18.  If  a  person  receives  or  suffers  bodily 
injury,  or  damage  in  his  property,  through  a  defect  or 
want  of  repair  or  of  sufficient  railing  in  or  upon  a 
highway,  town  way,  causeway,  or  bridge,  which  might 
have  been  remedied,  or  which  damage  or  injury  might 
have  been  prevented  by  reasonable  care  and  diligence 
on  the  part  of  the  county,  town,  place,  or  persons  by 
law  obliged  to  repair  the  same,  he  may  recover,  in 
the  manner  hereinafter  provided,  of  the  said  county, 
town,  place,  or  persons,  the  amount  of  damage  sus- 
tained thereby,  if  such  county,  town,  place,  or  per- 
sons had  reasonable  notice  of  the  defect,  or  might  have 
had  notice  thereof  by  the  exercise  of  proper  care  and 
diligence  on  their  part;  but  no  such  damage  shall  be 
recovered  by  a  person  whose  carriage  and  the  load 
thereon  exceed  the  weight  of  six  tons. 

§  1.  Source  of  the  Liability.  —  It  was  adjudged 
by  the  full  court,  in  a  case  decided  near  the 
beginning  of  the  present  century,  that  towns l 
were  not  liable  at  common  law  to  a  private  action 
for  injuries  caused  by  reason  of  a  defect  or  want 
of  repair  in  their  highways.2  Whatever  liability 

1  For  the  sake  of  convenience  the  word  "  town  "  only  is  us*ed 
throughout  these  sections  in  referring  to  municipal  corporations, 
whether  in  the  particular  case  such  corporation  was  a  "  county, 
town,  or  place." 

2  Mower  v.  Inhabitants  of  Leicester,  9  Mass.  247  (1812). 

The  term  "  highway  "  is  used  in  these  sections  as  the  general 
name  for  all  those  classes  of  public  ways  that  come  within  the 
terms  of  the  statute. 


THE   LIABILITY  OF   MUNICIPAL   CORPORATIONS.        3 

rests  upon  them  in  such  cases  is,  therefore,  purely 
statutory.1 

At  a  very  early  period  the  legislature  began  the 
policy,  which  has  since  been  consistently  followed, 
of  imposing  upon  towns  the  duty  of  keeping  the 
public  ways  within  their  borders  in  such  a  state  of 
repair  as  to  make  them  reasonably  safe  and  conven- 
ient for  travellers  at  all  seasons.2  The  liability 
to  respond  in  damages  for  injuries  caused  by  de- 
fects in  a  highway  grew  out  of  this  statutory  duty 
—  having  created  the  duty,  the  legislature  foresaw 
also  the  necessity  of  making  some  provision  to  en- 
force its  performance,  and  as  an  effective  means 
toward  this  end  it  adopted  the  expedient,  provided 
for  in  the  above  sections,  of  making  the  towns 
directly  responsible  to  the  person  injured  by  reason 
of  a  failure  to  keep  the  highways  in  proper  repair, 
or  to  his  legal  representatives  in  case  of  the  death 


1  "  This  rule  of  law,  however,  is  of  limited  application.     It  is 
applied,  iu  case  of  towns,  only  to  the  neglect  or  omission  of  a- 
town  to  perform  those  duties  which  are  imposed  on  all  towns,  with- 
out their  corporate  assent,  and  exclusively  for  public  purposes ;  and 
not  to  the  neglect  of  those  obligations  which  a  town  incurs,  when  a 
special  duty  is  imposed  on  it,  with  its  consent,  express  or  implied, 
or  a  special  authority  is  conferred  on  it,  at  its  request.     In  the  lat- 
ter cases,  a  town  is  subject  to  the  same  liabilities,  for  the  neglect 
of  those  special  duties,  to  which  private  corporations  would  be,  if  the 
same  duties  were  imposed  or  the  same  authority  were  conferred  on 
them  — including  their  liability  for  the  wrongful  neglect  as  well  as 
the  wrongful  acts  of  their  officers  and  agents."     Per  Mr.  Justice 
Metcalf  in  Bigelow  v.  Randolph,  14  Gray,  541,  543  (1860). 

2  The  provisions  upon  this  subject  at  present  in  force  are  con- 
tained in  Pub.  Sts.,  ch.  52,  a.  I. 


4  STATUTORY   TORTS  IN   MASSACHUSETTS. 

of  a  person  so  injured,  in  all  cases  where  other 
special  provision  was  not  made.1 

§  2.  Extent  of  the  Liability.  —  Since  it  is  created 
entirely  by  statute  and  is  based  upon  a  duty  im- 
posed by  statute,  the  general  limitations  of  the 
liability  may  be,  at  least  roughly,  defined.  On  the 
one  hand,  it  cannot  be  broadened  by  any  agreement 
of  the  town,  or  of  its  officers,  beyond  the  terms  of 
the  statute  itself.  Thus,  a  town  cannot,  by  con- 
tracting to  repair  a  portion  of  a  highway  that  it  is 
not  bound  by  law  to  keep  in  repair,  be  made  liable 
to  a  person  who  is  injured  by  reason  of  a  defect  in 
such  portion  of  the  way.2 

And,  on  the  other  hand,  the  liability  cannot  be 
narrowed  by  implication :  only  some  special  statu- 
tory provision  can  have  such  an  effect.  Thus, 
although  the  defect  that  caused  the  injury  is  within 
the  location  of  a  railroad,  the  town  is  still  liable,3 
in  the  absence  of  some  special  statutory  provision 
that  relieves  it  from  the  obligation  to  keep  such 
portion  of  its  highway  in  repair.4 

It  follows,  therefore,  that  the  statutory  duty  to 
repair  furnishes,  not  alone  the  basis,  but  as  well 
the  measure,  of  this  liability.  It  is,  then,  in  a 

1  For  the  history  of  the  development  of  the  statutes  creating 
this  liability,  see  Appendix  B. 

See  also  Scanlan  v.  Boston,  140  Mass.  84  (1885). 

2  Rouse  v.  Somerville,  130   Mass.  361   (1881).     And  see  also 
Gay  v.  Cambridge,  128  Mass.  387  (1880). 

3  Davis  i;.  Leominster,  1  Allen,  182  (1861) ;  Noyes  v.  Gardner, 
147  Mass.  505,  508  (1888). 

*  Scanlan  v.  Boston,  140  Mass.  84  (1885). 


THE   LIABILITY   OP   MUNICIPAL   CORPORATIONS.       5 

word,  not  greater,  nor  less,  but  simply  commen- 
surate with  the  duty  to  keep  the  highways  in  re- 
pair :  the  duty  to  keep  them  in  such  repair  that 
they  may  be  "  reasonably  safe  and  convenient  for 
travellers  at  all  seasons  of  the  year."  * 

§  3.  Construction  of  the  Statute.  —  The  provi- 
sions of  these  sections  of  the  statute  are,  in  nature 
and  effect,  a  species  of  penal  legislation  —  impos- 
ing a  penalty  upon  municipal  corporations  for  the 
neglect  of  a  public  duty.  It  is  considered  by  the 
court,  therefore,  that  the  legislature  intended  to 
put  no  greater  burden  upon  them  than  the  plain 
meaning  of  the  language  used  indicates.  In  other 
words,  the  statute  is  construed  strictly  in  favor 
of  the  defendant. 

It  follows  that  all  the  conditions  which  the  terms 
of  the  act  impose  must  be  strictly  fulfilled  before 
an  action  can  be  maintained.  Thus  where  the 
statute  requires  notice  of  the  accident  to  be  given 
within  a  certain  number  of  days,  a  plaintiff  who 
gives  it  after  the  time  fixed  has  elapsed  cannot 
maintain  his  action,  even  though  the  town  should 
waive  a  strict  compliance  with  the  provision.2 
And  again,  where  the  statute  gives  an  action  to  a 
person  injured  by  a  defect  that  has  existed  for 
twenty-four  hours,  a  person  injured  by  a  defect 
that  has  existed  for  a  less  time  cannot  maintain  an 
action.8 

1  See  opinion  of  Chief  Justice  Bigelow  in  Blodgett  v.  Boston, 
8  Alien,  237,  238  (1864). 

2  Gay  v.  Cambridge,  128  Mass.  387  (1880). 
8  Brady  v.  Lowell,  3  Cash.  121  (1849). 


6  STATUTORY   TORTS    IN    MASSACHUSETTS. 

Moreover  a  plaintiff  cannot  sue  for  any  other 
cause  of  action  than  that  expressly  set  out  in  the 
act,  viz.,  for  death,  or  for  injury  to  person  or 
property.  The  statute  cannot,  therefore,  he  ex- 
tended by  construction  so  as  to  give  an  action  to 
a  husband  for  the  loss  of  services  of  his  wife  who 
was  injured  by  a  defect  in  the  highway,  or  for  the 
medical  or  other  expenses  incurred  in  her  cure.1 

§  4.  Action  for  Death  and  Personal  Injury  Inde- 
pendent.—  The  right  of  action  given  by  section 
seventeen  of  the  statute  is  entirely  independent  of 
the  right  of  action  given  by  section  eighteen.  An 
action  under  each  section  may,  therefore,  proceed 
at  the  same  time,  on  independent  grounds,  and  for 
different  purposes.2 

§  5.  Doctrine  of  Contributory  Negligence. — The 
common-law  doctrine  of  contributory  negligence 
applies  also  to  actions  based  upon  this  statute.3 

1  Harwood  v.  Lowell,  4  Cush.  310  (1849). 

2  Bowes  v.  Boston,  155  Mass.  344,  349  (1892). 

8  Little  v.  Brockton,  123  Mass.  511  (1878).  Woods  v.  Boston, 
121  Mass.  337  (1876).  Hunt  v.  Salem,  121  Mass.  294  (1876). 
Snow  r.  Provincetown,  120  Mass.  580  (1876).  Hill  v.  Seekonk, 
119  Mass.  85  (1875).  Weare  v.  Fitchburg,  110  Mass.  334,  339 
(1872).  West  v.  Lynn,  110  Mass.  514,519  (1872).  Schoonmakcr 
v.  Wilbraham,  110  Mass.  134  (1872).  Hinckley  v.  Barnstable,  109 
Mass.  126  (1872).  Britton  v.  Cummington,  107  Mass.  347  (1871). 
Pollard  v.  Woburn,  104  Mass.  84,  87  (1870).  Blood  v.  Tyngs- 
borough,  103  Mass.  509  (1870).  Oilman  v.  Deerfield,  15  Gray, 
577  (1860).  Stevens  v.  Boxford,  10  Allen,  25  (1865).  Wilson  v. 
Charlestown,  8  Allen,  137  (1864).  Horton  v.  Ipswich,  12  Cush. 
488  (1853).  Ely  v.  Haverhill,  110  Mass.  520  (1872).  Adams  v. 
Carlisle,  21  Pick.  146  (1838).  Thompson  v.  Bridgewater,  7  Pick. 
188  (1828). 


THE   LIABILITY   OF   MUNICIPAL   CORPORATIONS.       7 

If  therefore  the  plaintiff  was  negligent  and  such 
negligence  contributed  in  any  degree  to  his  injury, 
he  is  not  entitled  to  recover,  even  though  the  high- 
way was  out  of  repair  and  that  want  of  repair  also 
contributed  to  the  injury.  And  in  accordance  with 
the  rule  as  to  the  burden  of  proof  that  is  followed 
by  the  Massachusetts  court,1  the  plaintiff  must,  in 
order  to  recover,  satisfy  the  jury  that  he  was  at  the 
time  of  the  accident  in  the  exercise  of  due  care.2 

The  standard  of  care  is  the  same  under  the 
statute  as  at  common  law, —  the  conduct  of  the 
ordinarily  intelligent  and  prudent  man  under  like 
circumstances.3  This  does  not  require  the  traveller 
to  give  all  his  attention  to  the  highway  over  which 
he  is  passing,  and  to  look  far  ahead  for  defects  or 
obstructions :  he  has  a  right  to  presume  that  such 
things  do  not  exist.4  But  he  must  use  ordinary 

1  See  Lane  v.  Crombie,  12  Pick.  177  (1831). 

2  Sawyer  r.  Newburyport,  157  Mass.  430  (1892).     At  the  time 
of  the  accident  means  both  before  and  after  its  commencement.   A 
plaintiff  cannot  in  the  exercise  of  due  care  "  abandon  herself  to 
needless  alarm  or  give  up  all  proper  control  of  the  horse,  in  con- 
sequence of  the  peril  to  which  she  was  exposed  by  the  negligence 
of  the  defendants  in  omitting  to  keep  their  road  in  suitable  repair. 
She  was  still  bound  to  use  such  care  as  a  person  of  ordinary  pru- 
dence and  discretion  would  exercise  if  placed  in  similar  circum- 
stances and  exposed  to  a  like  danger,  making  due  allowance  for 
the  alarm  into  which  she  and  her  companion  were  thrown  by  the 
occurrence  of  the  accident."      Chief  Justice  Bigelow  in  Brooks 
c.  Petersham,  16  Gray,  181, 184  (1860). 

3  Smith  v.  Smith,  2  Pick.  621  (1824).    Lane  v.  Crombie,  12  Pick. 
177    (1831),  as   treated  in  Palmer  v.  Andover,  2  Cush.  600,  605 
(1849).     McGuinness  t-.  Worcester,  160  Mass.  272  (1894). 

*  Thompson  v.  Bridgewater,  7  Pick.  188  (1828). 


8  STATUTORY   TORTS   IN   MASSACHUSETTS. 

prudence  both  in  the  manner  of  his  going  and  as 
to  the  condition  of  his  equipment.  Thus  if  he  is 
injured  while  driving,  it  is  incumbent  upon  him  to 
show  not  alone  that  he  was  driving  with  due  care 
and  skill,  but  also  that  he  was  "  using  a  proper 
horse  and  vehicle,  with  a  strong  and  suitable  har- 
ness : "  a  defect  in  any  of  these  details  due  to 
negligence,1  which  contributes  in  any  degree  to 
his  injury,  will,  of  course,  as  effectually  bar  a  re- 
covery under  these  sections  as  carelessness  in  his 
management  of  the  team.2 

The  standard  of  care  that  is  applied  to  adults, 
does  not,  however,  apply  also  to  a  child.  An 
infant  is  bound  to  show  simply  that  he  exercised 
that  degree  of  care  and  attention  which  may  fairly 
and  reasonably  be  expected  from  a  child  of  his  age 
and  capacity.3 

The  plaintiff  must,  since  the  statute  of  1851, 
c.  233,  prove  as  an  affirmative  proposition  the 
exercise  of  due  care  on  his  part.4  If,  therefore, 
there  is  no  direct  evidence  of  his  due  care  at  the 
time  of  the  injury,  and  the  circumstances  of  the 
accident  are  not  sufficiently  disclosed  to  warrant 
an  inference  upon  the  subject,  the  plaintiff  cannot 

1  As  to  the  effect  of  a  defect  in  vehicle  or  harness  due  to  pure 
accident,  that  contributes  to  the  accident,  see  §  17,  post. 

2  Murdock  v.  Warwick,  4  Gray,  178,  180  (1855).     Brackenridge 
v.  Fitchburg,  145  Mass.  160  (1887).     Horrigan  v.  Clarksburg,  150 
Mass.  218  (1889). 

8  Dowd  v.  Chicopee,  116  Mass.  93,  96  (1874). 
4  Hilton  v.  Boston,  171  Mass.  478  (1898).     For  the  rule  before 
the  St.  1851,  see  May  v.  Princeton,  11  Met.  442  (1846). 


THE   LIABILITY   OP  MUNICIPAL   CORPORATIONS.       9 

recover.1  But  a  jury  is  at  liberty  to  infer  that 
he  was  travelling  with  the  care  ordinarily  used 
under  the  circumstances,  if  the  evidence  shows 
fully  the  manner  in  which  the  accident  happened, 
and  there  is  no  evidence  to  show  negligence  on 
his  part  at  the  time  of  the  injury.2 

§  6.  Plaintiff's  Physical  Condition.  —  If  it  ap- 
pears that  the  plaintiff  was  intoxicated  at  the 
time  of  the  accident,  that  is  an  important  circum- 
stance to  be  considered  by  the  jury  upon  the 
question  whether  or  not  due  care  was  exercised. 
The  fact  of  intoxication  alone  will  not  debar  a 
plaintiff  from  maintaining  an  action  under  these 
sections  ;  it  simply  makes  proper  the  exaction  of 
a  greater  degree  of  care  from  him  as  he  passes 
over  the  highway.3  He  will  therefore  be  entitled 
to  recover,3  unless  it  appears  that  the  degree  of 
care  which  his  condition  demanded  was  not  used, 
and  that  such  neglect  contributed  to  his  injury.4 

So  also  the  condition  of  the  plaintiff's  eyesight 
may  have  an  important  bearing  upon  this  question 
of  due  care.  If  it  appears  in  evidence  that  his 
eyesight  was  poor  and  weak,  the  town  is  entitled 
to  have  the  jury  instructed  that  he  should  exercise 
a  greater  degree  of  care  in  walking  upon  the 

1  Crafts  v.  Boston,  109  Mass.  519,  521  (1872). 

2  Lyman  v.  Hampshire,  140  Mass.  311,314  (1885). 

8  Alger  v.  Lowell,  3  Allen,  402,  496,  poiut  2  (1862). 

4  Loftus  v.  North  Adams,  160  Mass.  161  (1893).  As  to  the 
evidence  in  such  cases,  see  Edwards  v.  Worcester,  172  Mass. 
104  (1898). 


10  STATUTORY   TORTS   IN   MASSACHUSETTS. 

streets   and   in  avoiding  obstructions,  than  is   re- 
quired of  a  person  with  good  sight.1 

§  7.  Plaintiff's  Knowledge  of  the  Existence  of  the 
Defect.  —  It  is  the  general  rule  that  the  mere  fact 
that  the  plaintiff  lived  near,  and  knew  of,  the 
defect  in  the  highway  by  which  he  was  injured, 
is  not  of  itself  conclusive  of  his  right  to  recover 
against  the  town  under  these  sections  of  the  stat- 
ute. This  circumstance  is  to  be  treated  simply 
as  evidence,  though  doubtless  evidence  of  great 
weight,  tending  to  show  a  lack  of  due  care  on  his 
part.2  But  this  general  rule  will  not  be  applied 
if  it  appears  that  the  plaintiff,  knowing  that  the 
way  was  in  a  very  dangerous  condition  and  having 
it  in  his  power  to  avoid  the  danger  by  going  around 
the  defective  spot,  voluntarily  chose  to  go  ahead 
and  to  take  the  chances  of  being  injured.3  This 
exception  to  the  rule  has  been  put  upon  the  ground 
that  a  plaintiff  who  pursues  such  a  course  is  utterly 
reckless,  exercising  not  the  least  possible  degree 

1  Winn  v.  Lowell,  1  Allen,  177  (1861). 

For  additional  cases  discussing  particular  phases  of  the  question 
of  due  care  on  the  plaintiff's  part,  see  Bigelow  v.  Rutland,  4  Cush. 
247  (1849).  Parker  v.  Springfield,  147  Mass.  391  (1888).  Kelly 
v.  Blackstone,  147  Mass.  448  (1888). 

2  Frost  v.  Waltham,  12  Allen,  85  (1866).     Reed  v.  Northfield, 
13  Pick.  94  (1832).     Barton  v.  Springfield,  110  Mass.  131   (1872). 
Weare  v.  Fitchburg,  110  Mass.  334  (1872).     George  v.  Haverhill, 
110  Mass.  506  (1872).     Kelly  v.  Blackstone,  147  Mass.  448  (1888). 
Norwood  v.  Somerville,  159  Mass.  105  (1893). 

8  Wilson  v.  Charlestown,  8  Allen,  137  (1864).  Oilman  v.  Deer- 
field,  15  Gray,  577  (1860),  as  explained  in  Kelly  v.  Blackstone, 
147  Mass.  448  (1888). 


THE  LIABILITY  OP   MUNICIPAL   CORPORATIONS.      11 

of  care  in  order  to  protect  himself.1  When  this 
is  the  state  of  the  evidence,  a  ruling  of  the  presid- 
ing judge  that  the  plaintiff  is  not  entitled  to  re- 
cover will  be  sustained.2 

§  8.  Plaintiff's  Violation  of  Statute  Law  or  City 
Ordinance  ;  Pleading.  —  The  fact  that  the  plaintiff 
was  at  the  time  of  his  injury  acting  in  violation 
of  some  statute  or  of  some  city  ordinance,  is  not 
alone,  as  a  matter  of  law,  conclusive  against  his 
right  to  recover  compensation  for  the  damage 
from  the  town.  It  is  simply  competent  evidence 
to  be  submitted  to  the  jury  upon  the  issue  of  due 
care  ;  which  leaves  it  still  to  be  established  that 
such  violation  of  law  contributed  to  the  injury. 
It  is,  therefore,  the  settled  rule  that  if  the  plaintiff's 
own  unlawful  act  concurs  in  producing  an  accident 
upon  the  highway,  he  cannot  maintain  an  action 
under  this  act.3 

1  See  Oilman  v.  Deerfield,  cited  above.    And  see  §  9. 

2  Wilson  v.  Charlestown,  8  Allen,  137  (1864). 

8  For  cases  involving  a  violation  of  a  city  ordinance,  see 
Heland  v.  Lowell,  3  Allen,  407  (1862).  Tuttle  v.  Lawrence,  119 
Mass.  276  (1876).  The  rule  is  applied  in  these  cases  even  though 
it  does  not  appear  that  the  plaintiff  had  any  actual  knowledge  of 
the  ordinance.  Heland  v.  Lowell,  ttbi  supra. 

For  cases  discussing  a  violation  of  the  law  of  the  road,  Pub. 
Sts.  ch.  93,  see  Smith  v.  Con  way,  121  Mass.  216  (1878).  Damon 
v.  Scituate,  119  Mass.  66  (1875).  Kidder  v.  Dunstable,  11  Gray, 
342  (1858).  Smith  v.  Gardner,  11  Gray,  418  (1858). 

Violations  of  the  statute  for  the  observance  of  the  Lord's  day, 
Pub.  Sts.  ch.  98,  s.  3  (repealed,  St.  1887,  ch.  391,  s.  4),  are  discussed 
in  Jones  v.  Andover,  10  Allen,  18  (1865).  Bosworth  v.  Swansey, 
10  Met.  363  (1845). 

In  these  latter  cases,  the  violation  of  the  statute  was  held  to  be 


12  STATUTORY  TOETS  IN   MASSACHUSETTS. 

In  this  class  of  cases,  evidence  of  the  plaintiff's 
unlawful  act  is  admissible  under  an  answer  con- 
taining a  general  denial.  "  The  averment  in  the 
declaration  of  the  use  of  due  care,  and  the  denial 
of  it  in  the  answer,  properly  and  distinctly  put  in 
issue  the  legality  of  the  conduct  of  the  party  as 
contributing  to  the  accident  or  injury  which  forms 
the  groundwork  of  the  action."  l 

§  9.  Volenti  non  fit  injuria.  —  The  doctrine  ex- 
pressed by  this  maxim  has  only  a  limited  appli- 
cation to  actions  under  these  sections  of  the 
statute.  To  make  it  applicable  to  such  actions, 
it  is  not  enough  to  show  that  the  plaintiff  was,  at 
the  time  of  the  accident,  intentionally  exposing 
himself  to  the  possibility  of  injury  by  travelling 
upon  a  highway  which  he  knew  to  be  defective.2 
It  must  also  be  taken  into  account  that  travel  upon 
the  public  ways  is  a  matter  not  merely  of  right, 
but  usually  also  of  necessity.  What  was  the  con- 
straint or  exigency  by  which  the  plaintiff  was  led 
to  undertake  the  trip  ?  Was  it  such  as  to  affect 
his  appreciation  of  the  nature  and  degree  of  the 
danger  arising  from  the  existence  of  the  defect,  or 
to  lead  him  to  assume  a  risk  that  he  would  not 
take  under  ordinary  circumstances  ?  These  con- 
siderations must  largely  affect  the  question  whether 

necessarily  a  contributing  cause  to  the  accident,  on  the  ground  that 
it  would  not  have  happened  but  for  the  plaintiff's  act  of  travelling 
on  the  Lord's  day. 

1  Jones  v.  Andover,  1  a  Allen,  18,  20  (1865). 

2  See  §  7,  ante. 


THE   LIABILITY   OP   MUNICIPAL    CORPORATIONS.      13 

the  assumption  of  the  risk  was  voluntary,  and 
whether  he  was  justified  in  exposing  himself  to  a 
greater  danger  than  he  could  prudently  incur 
under  ordinary  circumstances.1 

But  nevertheless,  if  a  plaintiff,  when  the  exigency 
of  the  case  does  not  require  it,  voluntarily  chooses 
to  travel  over  a  highway  which  he  knows  to  be 
defective,  understanding  the  danger  of  such  a 
course,  he  will  be  held  to  have  assumed  the  risk, 
and  will  be  debarred  from  maintaining  an  action 
for  damages  against  the  town.2 

§  10.  Plaintiff's  Control  over  his  Horse.  —  If  the 
plaintiff  is  injured  while  driving  along  the  high- 
way, whether  or  not  he  had  control  of  his  horse 
at  the  time  when  he  came  upon  the  defect,  may 
constitute  an  important  element  in  deciding  the 
case.  The  general  rule  upon  this  point  is  laid  down 
in  Titus  v.  Northbridge3  in  the  following  language  : 
"  When  a  horse,  by  reason  of  fright,  disease  or 
viciousness,  becomes  actually  uncontrollable,  so 
that  his  driver  cannot  stop  him,  or  direct  his 
course,  or  exercise  or  regain  control  over  his  move- 
ments, and  in  this  condition  comes  upon  a  defect 
in  the  highway,  or  upon  a  place  which  is  defective 
for  want  of  a  railing,  by  which  an  injury  is  occa- 
sioned, the  town  is  not  liable  for  the  injury,  unless 

1  Pomeroy  v.  "Westfield,  154  Mass.  462  (1891).    And  see  also 
Fitzgerald  v.  Connecticut  River  Paper  Co.,  155  Mass.  155  (1891). 

2  Wilson  v.    Charlestown,    8    Allen,    137    (1864).    Oilman  v. 
Deerfield,  15  Gray,  577  (1860). 

8  97  Mass.  258,  265  (1867). 


14  STATUTORY  TORTS   IN   MASSACHUSETTS. 

it  appears  that  it  would  have  occurred  if  the  horse 
had  not  been  so  uncontrollable.  But  a  horse  is  not 
to  be  considered  uncontrollable  that  merely  shies 
or  starts,  or  is  momentarily  not  controlled  by  his 
driver."  *  Therefore,  if  it  appears  that  the  loss  of 
control  over  the  animal  was  only  momentary,  and 
would  have  been  instantly  regained  had  not  the 
wagon  come  into  contact  with  the  defect,  the  gen- 
eral rule  will  not  be  applied,  but  the  plaintiff  will 
still  be  entitled  to  recover.2 

In  cases  of  this  kind  it  is  for  the  jury  to  say 
whether,  upon  all  the  evidence,  there  was  any  loss 
of  control  of  the  horse,  and,  if  there  was,  whether 
or  not  it  was  merely  momentary.3  And  the  burden 
is,  of  course,  upon  the  plaintiff  to  satisfy  the  jury 
that  the  horse  did  not  pass  beyond  his  control  save 

1  Foggr.  Nahant,  98  Mass.  578  (1868);    s.  c.  106  Mass.  278 
(1871).     Davis  v.  Dudley,  4  Allen,  557  (1862).     Wright  v.  Temple- 
ton,  132  Mass.  49,  51   (1882).     Higgins  v.  Boston,  148  Mass.  484, 
486  (1889),   accord. 

"  The  fact  that  a  horse  starts  or  shies  at  an  object  in  the 
highway  (whether  such  object  is  or  is  not  a  defect  in  the  way)  and 
is  thus  brought  in  contact  with  a  defect,  arising  either  from  want 
of  proper  repair  in  the  surface  of  the  highway  or  of  sufficient 
railing  at  the  side  of  it,  is  not  conclusive  against  the  right  of  the 
driver  to  recover  damages  against  the  town  for  an  injury  thereby 
resulting  to  him ;  for  the  most  gentle,  intelligent  and  well-broken 
horses  will  sometimes,  in  spite  of  all  precautions  and  efforts  of 
their  driver,  and  yet  without  in  any  just  sense  escaping  from  his 
control,  swerve  out  of  their  direct  course  to  avoid  a  defect,  or 
what  seems  to  them  to  be  a  danger,  in  the  road."  Per  Mr.  Justice 
Gray  in  Stone  v.  Hubbardston,  100  Mass.  49,  54  (1868). 

2  Britton  v.  Cummington,  107  Mass.  347  (1871). 

8  Harris  v.  Great  Barrington,  169  Mass.  271,275  (1897). 


THE   LIABILITY   OF   MUNICIPAL   CORPORATIONS.      15 

for  an  instant,  and  that  his  control  would  have 
been  immediately  regained  but  for  coming  in  con- 
tact with  the  defect.1 

§  11.  The  Plaintiff  must  be  a  Traveller.  —  Towns 
are  not  bound  to  keep  their  highways  safe  and  con- 
venient for  all  purposes,  but  only  for  the  purpose 
of  travel.  It  is  incumbent  upon  the  plaintiff, 
therefore,  to  show  that  he  was,  at  the  time  of  his 
injury,  using  the  highway  for  the  purpose  for 
which  the  town  was  obliged  to  keep  it  in  repair: 
in  the  language  of  the  statute,  he  must  show  that 
he  was  at  that  time  a  "traveller."  And  conse- 
quently an  injury  resulting  while  the  plaintiff  is 
making  an  improper  or  unauthorized  use  of  the 
highway  imposes  no  liability  upon  the  town.  Thus 
a  person  who  is  using  the  highway  solely  as  a  play- 
ground,2 or  solely  for  the  convenience  of  his  busi- 
ness,3 cannot  recover  compensation  under  this 
statute. 

The  test  to  be  applied  in  order  to  determine 
whether  or  not  the  plaintiff  was  a  traveller  at  the 
time  when  he  was  injured,  so  far  as  any  test  can 
be  laid  down,  is,  whether  the  acts  of  the  plaintiff 
at  the  time  of  the  accident  were  naturally  incident 
to  travel,  and  were  consistent  with  an  intention  on 
his  part  to  continue  upon  and  over  the  highway  for 
the  usual  and  proper  purposes  of  travel.  Thus,  a 

1  Babson  v.  Rockport,  101  Mass.  93  (1869). 

2  Tighe  v.  Lowell,  119  Mass.  472  (1876).    Lyons  v.  Brookline, 
119  Mass.  491  (1876).     Blodgett  v.  Boston,  8  Allen,  237  (1864). 

8  McDougall  v.  Salem,  110  Mass.  21  (1872). 


16  STATUTOEY  TORTS  IN  MASSACHUSETTS. 

person  who  is  walking  along  the  highway  simply 
for  the  purpose  of  exercise,  is  deemed  to  be  a 
traveller.1  And  the  mere  doing  of  an  act  in  play, 
as  stopping  to  clasp  a  post  by  the  side  of  the  path,2 
or  playing  tag  while  going  along  the  street,3  will 
not  deprive  the  injured  person  of  the  character  of 
a  traveller.  Nor  will  the  mere  stopping  for  a  few 
minutes  to  watch  other  boys  at  play  have  such  an 
effect ; 4  nor,  again,  alighting  from  one's  carriage 
and  picking  berries  for  a  short  time  by  the  side  of 
the  road.5  It  is  obvious  in  each  of  these  cases  that 
the  acts  of  the  plaintiff  could  reasonably  be  re- 
garded as  the  natural  and  ordinary  incidents  of 
travel  upon  the  highway,  which  interrupted  his 
progress  only  incidentally  and  for  a  reasonable 
time. 

Whether  or  not  the  plaintiff  was  a  traveller  is 
a  question  of  fact  for  the  jury  to  determine  upon 
all  the  evidence,6  unless  the  character  of  the 
plaintiff's  acts  at  the  time  of  his  injury  make  it 
perfectly  clear  that  he  had  then  ceased  to  use  the 
highway  for  the  proper  purposes  of  travel,  in  which 

1  Hamilton  v.  Boston,  14  Allen,  475  (1867).     But  it  has  been 
held  that  a  person  injured  by  the  breaking  of  a  defective  railing 
against  which  he  was  leaning  while  engaged  in  conversation,  could 
not  recover  under  this  statute.     Stickney  v.  Salem,  3  Allen,  374 
(1862). 

2  Gulline  v.  Lowell,  144  Mass.  491  (1887). 

3  Graham  v.  Boston,  156  Mass.  75  (1892). 

*  Bliss  ».  South  Hadley,  145  Mass.  91  (1887). 
6  Britton  v.  Cummington,  107  Mass.  347  (1871). 
6  Hunt  v.  Salem,  121  Mass.  294  (1876). 


THE  LIABILITY   OP   MUNICIPAL   CORPORATIONS.      17 

case  it  becomes  the  duty  of  the  court  to  take  the 
cause  from  the  jury.1 

§  12.  Motive  for  Travelling.  —  If  a  plaintiff  was 
using  a  highway  for  the  purpose  of  travel,  it  seems 
that  his  motive  or  object  for  travelling  is  not 
material  in  determining  whether  he  is  entitled  to 
recover  damages  for  an  injury  occasioned  by  a 
defect  therein.  For  "  the  highway  is  to  be  kept 
safe  and  convenient  for  all  persons  having  occa- 
sion to  pass  over  it,  while  engaged  in  any  of  the 
pursuits  or  duties  of  life  "  —  whether  of  business, 
convenience,  or  pleasure.2 

§  13.  Mode  of  coming  upon  the  Defect.  —  If  it  be 
not  negligent,  the  manner  in  which  a  person  comes 
into  contact  with  a  defect  in  the  highway  is  im- 
material. Thus  where  the  plaintiff,  while  pass- 
ing along  the  street,  saw  a  loose  telephone  wire 
hanging  in  such  a  way  as  to  endanger  passers 
by,  and  stooping  to  pick  it  up  in  order  to  throw  it 
out  of  the  way,  received  a  severe  electrical  shock, 
it  was  held  that  the  fact  that  the  injury  was  a 
result  of  his  intentional  act  would  not  defeat  his 
recovery  under  this  statute.3 

"  IP  A  PERSON  RECEIVES  OR  SUFFERS   BODILY   INJURY. " 

§  14.  Who  comes  -within  the  Statute.  —  The  word 
"  person  "  as  here  used  is  of  broad  significance,  and 
includes  every  one,  without  regard  to  age  or  condi- 


1  Stickney  v.  Salem,  3  Allen,  374  (1862). 

2  See  Blodgett  v.  Boston,  8  Allen,  237,  240  (1864). 
'  Bourget  v.  Cambridge,  156  Mass.  391  (1892). 

2 


18  STATUTORY  TORTS  IN   MASSACHUSETTS. 

tion,  who  may  have  occasion  to  pass  over  the  high- 
way.1 An  unborn  infant,  between  four  and  five 
months  advanced  in  foetal  life,  which  was  a  part  of 
the  mother  at  the  time  of  the  accident,  does  not 
however  come  within  this  rule.2 

It  has  not  been  decided  whether  or  not  the  fact 
that  the  relation  of  master  and  servant  existed 
between  the  town  and  the  injured  person  would 
debar  him  from  recovering  damages  under  these 
sections  of  the  statute.3  It  has  been  held,  how- 
ever, that  a  police  officer  was  not  a  servant  of  the 
town  in  any  such  sense  as  to  prevent  him  from  re- 
covering compensation  for  an  injury  occasioned  by 
a  defect  in  the  highway  while  engaged  in  the  per- 
formance of  the  duties  of  his  office.4 

§  15.  Bodily  injury. — A  plaintiff  cannot  main- 
tain an  action  against  a  town  under  this  statute  for 
the  risk  and  peril  alone,  —  the  mere  mental  suffer- 
ing, —  that  he  incurred  by  reason  of  an  accident  due 
to  a  defect  in  the  highway.  He  must  show  some 
injury  to  the  person.  But  if  he  has  suffered  a 
bodily  injury,  however  small,  and  it  was  attended 
by  mental  suffering,  that  suffering  is  a  part  of  the 
injury  to  the  person  within  the  meaning  of  the 

1  See  Hamilton  v.  Boston,  14  Allen,  475,  483  (1867). 

2  Dietrich  v.  Northampton,  138  Mass.  14  (1884). 

3  See   Eaton  v.  Woburn,  127  Mass.  270  (1878).    In  Wood  v. 
Waterville,  4  Mass.  422  (1808),  it  was  held  that  a  surveyor  of  high- 
ways could  recover  damages  from  the  town  for  an  injury  received 
through  a  defect  of  the  way  within  his  own  district,  unless  the 
defect  arose  from  his  own  neglect. 

4  Kimball  v.  Boston,  1  Allen,  417  (1861). 


THE   LIABILITY   OF   MUNICIPAL   CORPORATIONS.      19 

statute,   and   is   to   be   considered   in    estimating 
the  damages.1 

"  THROUGH  A  DEFECT  OR  WAKT  OF  REPAIR." 
§  16.  The  Defect  must  be  the  Proximate  Cause  of 
the  injury.  —  The  rule  is  strictly  followed  that 
towns  are  liable  in  damages  only  for  the  direct  and 
immediate  consequences  occasioned  by  defects  in 
the  highway.2  An  injury  suffered  in  consequence 
of  efforts,  made  by  the  traveller  with  reasonable 
care,  to  extricate  himself  from  a  position  into 
which  he  is  brought  by  reason  of  a  defect  in  the 
highway,  is  a  direct  result  of  such  defect  within 
the  meaning  of  this  rule.3  It  necessarily  follows 
from  the  rule,  of  course,  that  if  the  defect  is  merely 
the  remote  cause  of  an  injury,  there  can  be  no 
recovery  under  this  statute.  Thus,  if  a  plaintiff, 
coming  to  a  defective  place  in  the  highway,  turns 
out  of  the  road  in  order  to  go  around  the  defec- 
tive spot  and  is  injured  while  outside  the  limits  of 
the  highway,  he  cannot  recover  damages  from  the 
town,  although  the  accident  would  not  have  hap- 
pened but  for  the  defect  within  the  way.4  Nor 
will  it  alter  the  result  if  the  injury  in  such  a  case 

1  Canning  v.  Williamstown,  1  Cush.  451  (1848). 

2  Harwood  v.  Lowell,  4  Cush.  310  (1849).     Marble  v.  Worcester, 
4   Gray,  395  (1855).     Jenks  v.  Wilbraham,  11  Gray,  142  (1858). 
Raymond   v.    Haverhill,  168  Mass.  382   (1897).     Davis   v.   Long- 
meailow,  169  Mass.  551  (1897). 

3  Lund  v.  Tyngsboro,  11   Cush.  563  (1853).     Flagg  v.  Hudson, 
142    Mass.    280   (1886).     Tuttle   v.  Holyoke,  6   Gray,  447   (1856). 
Davis  u.  Longmeadow,  169  Mass  551  (1897). 

*  Tisdale  W.Norton,  8  Met.  388  (1844). 


20  STATUTORY   TORTS   IN   MASSACHUSETTS. 

occurs  within  the  location  of  the  highway,  though 
outside  the  part  wrought  for  travel.1 

§  17.  The  Defect  must  be  the  Sole  Cause  of  the 
Injury.  —  It  is  the  general  rule  that  the  defect  in 
the  highway  must  be,  not  only  the  proximate,  but 
as  well  the  sole,  cause  of  the  accident.2  If,  there- 
fore, the  wrongful  or  negligent  act  of  the  plaintiff 
himself,3  or  of  a  third  person,4  is  a  concurrent 
cause  of  the  injury,  the  plaintiff  cannot  recover. 
Cases  of  this  class  are,  of  course,  to  be  distinguished 
from  those  where  the  wrongful  or  negligent  act  of 
a  third  person  creates,  or  concurs  in  creating,  the 
defect  that  occasions  the  injury,  since  the  rule  is 
well  established  that  towns  are  liable  without 
regard  to  the  origin  of  the  defect.5 

But,  as  was  said  by  Mr.  Justice  Holmes  in  Hayes 
v.  Hyde  Park,6  "  it  is  because  the  act  is  wrongful, 
including  under  this  head  negligence,  not  because 
it  is  a  concurring  cause,  that  the  defendant  es- 
capes. If  the  act  which  concurs  with  the  defect 

1  Shepardson  v.  Colerain,  13  Met.  55  (1847). 

2  Shepherd   v.   Chelsea,  4  Allen,    113  (1862).     Kidder  v.  Dun- 
stable,   7   Gray,  104   (1856).     Babson  v.  Rockport,  101    Mass.  93 
(1869).    Rowell  v.  Lowell,  7  Gray,  100  (1856).    Bemis  v.  Arlington, 
114  Mass.  507  (1874).     Lyons  v.  Brookline,  119  Mass.  491   (1876). 
Whitford  v.  Southbridge,  119  Mass.  564,  573  (1876).     Richards  v. 
Enfield,  13  Gray,  344  (1859). 

3  Horrigan  v.  Clarksburg,  150  Mass.  218  (1889).     And  see  §  5, 
ante. 

*  Pratt  v.  Weymouth,  147  Mass.  245  (1888). 
6  Snow  v.  Adams,  1  Cush.  443,  446  (1848).     Bacon  v.  Boston, 
3  Cush.  174  (1849).     And  see  §  19,  post. 
6  153  Mass.  514,516  (1891). 


THE   LIABILITY   OF  MUNICIPAL   CORPORATIONS.      21 

in  producing  the  result  complained  of  is  innocent, 
and  is  of  a  kind  which  the  defendant  is  bound  to 
expect  and  to  provide  for,  —  such,  for  instance,  as 
another  man's  driving  upon  the  road, — the  jury 
may  find  against  the  town  as  well  as  when  a  par- 
ticular state  of  the  weather  is  a  concurrent  cause." 
The  innocent  intervening  act  which  will  not  debar 
the  plaintiff  from  recovering  under  this  statute  may 
be  his  own  act,  —  as  where  the  plaintiff,  without 
fault  on  his  part,1  had  been  led  into  a  position 
rendered  dangerous  by  reason  of  a  defect  in  the 
highway,  and,  exercising  due  care  and  prudence, 
voluntarily  leaped  from  his  carriage  in  an  attempt 
to  save  himself  and  was  injured  thereby ; 2  or  it 
may  be  the  act  of  a  third  person,  —  as  where  the 
plaintiff  was  injured  by  being  pushed  from  the 
highway,  down  an  unguarded  and  dangerous  de- 
clivity, by  a  crowd,  the  action  of  the  crowd  being 
neither  wilful  nor  negligent.3 

So  also  the  rule  has  been  laid  down  that  where 
the  concurring  cause  is  a  pure  accident,  —  an  event 
that  ordinary  prudence  could  not  foresee  and  guard 

1  If  the  plaintiff  gets  himself  into  a  dangerous  situation  through 
his  own  want  of  due  care,  he  must  extricate  himself  at  his  own 
risk.     "  A  plaintiff  cannot  relieve  himself  from  a  dangerous  position 
into  which  his  own  fault  has  brought  him  and  hold  the  town  re- 
sponsible for  the  result."    Little  v.  Brockton,  123  Mass.  511  (1878). 

2  Lund  r.  Tyngsboro,  11  Cush.  563  (1853).     Sears  v.  Dennis, 
105  Mass.  310  (1870).     Williams  v.  Ley  den,  119  Mass.  237  (1876). 
Thompson  v.  Bridgewater,  7  Pick.  188  (1828).     Flagg  v.  Hudson, 
142  Mass.  280  (1886).    Pomeroy  v.  Westfield,  154  Mass.  462  (1891). 

8  Alger  v.  Lowell,  3  Allen,  402,  406  (1862). 


22  STATUTORY  TORTS   IN   MASSACHUSETTS. 

against,  —  the  plaintiff  will  not  be  debarred  from 
maintaining  an  action.  Thus,  where  the  plaintiff 
was  injured  by  the  co-operation  of  a  defect  in  the 
highway  and  a  failure  of  a  part  of  his  carriage  and 
harness,  which  failure  was  not  attributable  to  any 
lack  of  prudence  or  foresight  on  his  part,  it  was 
held  that  he  could  recover  from  the  town.1 

§  18.  What  constitutes  a  Defect.  —  The  duty 
resting  upon  towns,  it  is  to  be  remembered,  is  to 
keep  their  highways  in  such  repair  as  to  be  safe 
and  convenient  for  travellers  at  'all  seasons.  In 
general  terms,  then,  whatever  in  the  state  or  con- 
dition of  the  highway  renders  travel  unsafe  or 
inconvenient  is  a  defect  or  want  of  repair  in  the 
highway  within  the  meaning  of  these  sections.2 
The  state  or  condition  of  the  way  that  renders 
travel  dangerous  or  inconvenient  may  consist  of 
an  obstruction  in  an  otherwise  safe  road,  as  logs 
or  lumber  extending  into  the  travelled  path,  or  a 
post  or  barriers  set  up  in  the  way;3  or  it  may 
consist  of  an  unfitness  of  the  road  itself  for  or- 
dinary travel,  due  to  faulty  construction,  or  to 
ordinary  wear,  or  to  any  other  cause.* 

But  in  order  to  constitute  a  defect  within  the 

1  Palmer  v.  Andover,  2  Cush.  600  (1849).     See  discussion  in 
Rowell  i:  Lowell,  7  Gray,  100,  102  (1856).     Hayes  v.  Hyde  Park, 
153  Mass.  514  (1891),  accord. 

2  See  Barber  i-.  Roxbury,  11  Allen,  318  (1865). 

3  Snow  v.  Adams,  1  Cush,  443,  446  (1848).     Pratt  v.  Amherst, 
140  Mass.  167  (1885).     Arey  v.  Newton,  148  Mass.  598  (1889). 

4  Talbot  v.  Taunton,  140  Mass.  552  (1886).     Cromarty  r.  Bos- 
ton, 127  Mass.  329  (1879). 


THE   LIABILITY   OP   MUNICIPAL   CORPORATIONS.      23 

meaning  of  this  clause,  it  is  not  necessary  that 
the  matter  complained  of  should  present  such  a 
condition  of  things  as  to  endanger  all  modes  of 
public  travel  upon  the  highway ;  "  it  is  enough 
that  it  makes  any  mode  dangerous  which  the 
public  have  a  right  to  use."  Thus,  a  post  set  in 
the  highway  so  near  to  the  street-railway  tracks 
as  to  knock  the  conductor  of  a  passing  car  from 
the  running-board  while  he  was  collecting  fares, 
was  held  to  be  a  defect,  although  it  might  not 
render  dangerous  any  other  mode  of  travel.1 

The  mere  fact  that  the  dangerous  condition  of 
the  highway  was  concealed  does  not  make  such 
condition  any  the  less  a  defect  for  which  the  town 
may  be  liable.  The  liability  imposed  by  this 
statute  covers  all  defective  conditions  within  the 
travelled  path,  whether  open  and  obvious  or  other- 
wise, provided  that  they  are  of  such  a  nature  that 
the  town  might  discover  and  remedy  them  by  the 
exercise  of  reasonable  care  and  diligence.2 

Whether  or  not  the  highway  is  defective,  or  is 
safe  and  convenient  for  travel,  is  ordinarily  a  ques- 
tion of  fact  for  the  jury ; 3  but  if  the  precise  posi- 
tion and  the  characteristics  of  the  alleged  defect 
or  want  of  repair  are  not  matters  of  controversy, 

1  Powers  v.  Boston,  154  Mass.  60  (1891). 

2  Burt  v.  Boston,   122  Mass.  223,  226  (1877).     McGaffigan  t>. 
Boston,  149  Mass.  289  (1889).     And  see  §§  37,  43,  post. 

8  Dowd  v.  Chicopee,  116  Mass.  93  (1874).  Ghenn  v.  Province- 
town,  105  Mass.  313  (1870).  Brooks  v.  Somerville,  106  Mass.  271 
(1871).  Pratt  v.  Amherst,  140  Mass.  167  (1885).  Harris  v.  Great 
Barrington,  169  Mass.  271,  275  (1897). 


24  STATUTORY  TORTS   IN   MASSACHUSETTS. 

the  court  can  determine  the  question  as  a  matter 
of  law.1 

§  19.  The  Cause  of  the  Defect.  —  The  essence  of 
the  liability  created  by  this  statute  is  for  not  abat- 
ing a  dangerous  condition  which  may  exist  in  the 
highway.  Therefore,  what  was  the  cause  of  that 
dangerous  condition  is  not  material.  Indeed,  it 
may  be  created  by  the  town  itself,  or  by  third 
persons,  or  by  the  action  of  the  elements,  or  by 
any  other  conceivable  cause,  and  in  each  case  the 
town  may  be  liable  to  any  person  injured  by  reason 
of  its  existence.2 


1  Raymond  v.  Lowell,  6  Cush.  524  (1850).  Macomber  v.  Taun- 
ton,  100  Mass.  255  (1868). 

'2  Pratt  v.  Amherst,  140  Mass.  167  (1885).  Snow  r.  Adams,  1 
Cush.  443  (1848).  Cromarty  v.  Boston,  127  Mass.  329,  331  (1879). 
And  see  §  41,  post. 

Where  a  traveller  is  injured  by  reason  of  a  defect  in  a  highway 
that  was  due  to  the  negligence  or  misconduct  of  a  third  party, 
while  both  the  town  and  the  third  party  may  be  liable,  they  are  not 
in  pari  delicto.  Lowell  v.  Boston  &  Lowell  Railroad,  23  Pick. 
24,  31  (1834).  Therefore,  if  in  such  a  case  a  town  is  compelled  to 
pay  damages,  it  is  entitled  to  recover  from  such  third  party  the 
amount  so  paid,  at  least  to  the  extent  of  single  damages.  Lowell 
»;.  Boston  &  Lowell  Railroad,  23  Pick.  24  (1834).  Lowell  v.  Short, 
4  Cush.  275  (1849).  Lowell  v.  Spaulding,  4  Cush.  277  (1849). 
Stoughton  v.  Porter,  13  Allen,  191  (1866).  But  the  question 
whether  or  not  such  third  party  is  liable  over  to  the  town  is  not 
material,  so  far  as  the  right  of  the  traveller  to  recover  from  the 
town  is  concerned.  Purple  v.  Greenfield,  138  Mass.  1  (1884). 

As  to  the  right  of  the  town  in  such  a  case  to  recover  the  costs 
of  the  former  action,  see  Lowell  v.  Boston  &  Lowell  Railroad,  ubi 
supra.  See  also  Pub.  Sts.  ch.  112,  s.  209. 

As  to  the  liability  over  of  gas  companies,  see  Pub.  Sts.  ch.  106, 
s.  76.  And  of  electric-light  companies,  see  St.  1887,  ch.  385,  s.  5. 


THE    LIABILITY   OP   MUNICIPAL   CORPORATIONS.      25 

Under  this  rule,  the  fact  alone  that  the  town  had 
no  control  over  the  cause  that  produced  the  defect, 
and  could  not  prevent  its  operation,  affords  no 
defence  ; l  if  it  might  have  discovered  and  remedied 
the  defect  by  the  exercise  of  reasonable  care  and 
diligence,  it  is  still  liable.  But  if  it  appears  that 
the  defective  condition  was  one  which  the  town 
had  neither  the  power  nor  the  right  to  remedy,  the 
town  is  not  liable :  the  liability  is  only  coextensive 
with  the  right  and  duty  to  repair.2  Thus,  the 
narrowness  and  crookedness  of  a  highway,  due  to 
the  manner  in  which  it  was  laid  out  by  the  County 
Commissioners,  though  doubtless  a  defect,  will  not 
render  the  town  liable  to  a  person  injured  in  con- 
sequence thereof,  since  it  had  no  right  to  go  out- 
side of  the  limits  defined  by  the  location  in  order 
to  make  the  highway  more  safe  and  convenient.3 

§  20.  The  Defect  must  be  in  the  Travelled  4  Part. 
—  The  statutory  duty  as  to  highways  does  not 
necessarily  require  that  the  town  should  prepare 
for  travel  the  whole  road,  from  one  boundary  to 
the  other.  A  wrought  part  that  is  safe  and 
convenient  for  ordinary  travel  satisfies  the  statu- 

1  See  Billings  v.  Worcester,  102  Mass.  329,  332  (1869). 

2  Jones  v.  Waltham,  4  Cush.  299  (1849).     Smith  v.  Wakefield, 
105  Mass.  473  (1870).    And  see  Flanders  v.  Norwood,  141  Mass. 
I7'(1886). 

8  Smith  v.  Wakefield,  105  Mass.  473  (1870). 

4  By  the  "  travelled  part "  of  the  road  is  intended  that  part 
which  is  usually  wrought  for  travel,  and  not  any  track  which  may 
happen  to  be  made  in  the  road  by  the  passing  of  vehicles.  Clark 
v.  Commonwealth,  4  Pick.  125  (1826). 


26  STATUTORY  TORTS   IN   MASSACHUSETTS. 

tory  requirement.  It  follows,  therefore,  that  a 
town  is  liable  under  tnese  sections  of  the  statute, 
only  for  injuries  resulting  in  consequence  of  those 
defects  that  exist  in  that  part  of  the  highway 
which  is  wrought  and  used  for  travel.1  There  are, 
however,  several  exceptions  to  this  general  rule. 
Although  injured  by  a  defect  outside  the  travelled 
part,  a  plaintiff  may  still  be  entitled  to  recover 
compensation  if  he  can  show  that  the  dangerous 
spot  was  so  near  to  the  wrought  part  as  to  render 
travel  thereon  dangerous.2  And  so,  also,  if  he  can 
show  that  the  town  had  become  bound  to  keep 
such  part  of  its  highway  in  repair,  although  it 
had  never  been  wrought  for  travel,  since  "  a  side 
of  a  street  may  be  in  such  form  and  so  used,  with 
the  knowledge  and  acquiescence  of  a  town,  as  to  be 
a  portion  of  the  travelled  part  of  the  way,  which 
the  town  is  bound  to  keep  in  repair,  even  though 
no  work  has  been  done  upon  it  to  fit  it  for  the 
use  of  pedestrians."  3 

1  Howard  v.  North  Bridge  water,  16  Pick.  189  (1834).     Smith 
v.  Wendell,  7  Cush.  498  (1851).    Carey  v.  Hubbardston,  172  Mass. 
106  (1898). 

2  Snow  v.  Adams,  1  Cush.  443  (1848).     Arey  v.  Newton,  148 
Mass.  598  (1889).     In  such  cases  it  is  usually  a  question  of  fact 
for    the  jury  whether  the   dangerous   place   was  in   such   close 
proximity  to  the  wrought   part  as  to  make  the  use  of  the  way 
itself  unsafe.     Warner  v.   Holyoke,    112   Mass.   362    (1873). 

The  case  does  not  come  within  this  exception  to  the  rule  where 
an  object  outside  the  travelled  part  is  dangerous  to  the  traveller 
only  because  it  causes  his  horse  to  take  fright.  Keith  v.  Easton, 
2  Allen,  552  (1861). 

8  Moran  v.  Palmer,  162  Mass.  196  (1894).  Lowe  v.  Clinton, 
136  Mass.  24  (1883).  Aston  v.  Newton,  134  Mass.  507  (1883). 


THE   LIABILITY   OP   MUNICIPAL   CORPORATIONS.      27 

And  again,  the  plaintiff  may  maintain  his  action 
if  he  can  show  that  the  limits  of  the  highway  were 
not  indicated  by  any  visible  objects  which  would 
show  the  course  intended  for  travel,  and  that  the 
defect  which  caused  the  injury,  though  outside  the 
wrought  part,  was  within  the  general  course  and 
direction  of  travel.1 

§  21.  Snow  and  Ice  as  a  Defect.  —  Based  upon 
considerations  of  climate,  the  rule  was  established 
that  the  bare  fact  that  a  highway,  which  was 
properly  constructed  and  of  no  unusual  slope,  had 
become  slippery  by  reason  of  the  existence  of  a 
coating  of  ice  which  presented  a  smooth  and 
polished  surface,  over  which  it  was  difficult  to  pass 
without  being  exposed  to  the  danger  of  a  fall,  did 
not  constitute  a  defect  for  which  a  town  was  liable 
under  these  sections  of  the  statute.2  If,  however, 
such  smooth  coating  of  ice  formed  upon  the  high- 
way because  of  the  improper  construction  or  of 
the  defective  condition  of  the  highway  itself,  there 
may  be  a  defect  for  which  the  town  can  be  held 
responsible.3 

1  Coggswell   v.   Lexington,   4   Cush.   307    (1849).    Hayden  v. 
Attleborough,  7  Gray,  338  (1856).     Harwood  v.  Oakham,  152  Mass. 
421  (1890).     But  see  Marshall  v.  Ipswich,  110  Mass.  522  (1872). 

2  Stanton   v.   Springfield,  12   Allen,  566    (1866).     Hutchins   v. 
Boston,  12  Allen,  571,  n.  (1866).     Johnson  v.  Lowell,  12  Allen,  572, 
n.  (1866).     Nason  v.  Boston,  14  Allen,  508  (1867).     Gilbert  v.  Rox- 
bury,    100   Mass.    185    (1868).     Billings   v.  "Worcester,  102  Mass. 
329  (1869).     Pinkham  v.  Topsfield,  104  Mass.  78,  83  (1870). 

3  Adams    v.   Chicopee,    147    Mass.   440   (1888).      Spellman    v. 
Chicopee,  131   Mass.  443  (1881).     McGowan  v.  Boston,  170  Mass. 
384  (1898). 


28  STATUTORY   TORTS   IN   MASSACHUSETTS. 

It  was  also  the  well  settled  rule  that  if  snow  or 
ice  accumulated  in  ridges,  or  assumed  a  rough  and 
uneven  condition,  or  such  a  shape  as  to  be  an 
obstruction  to  trave],  either  by  reason  of  drifting, 
or  of  the  repeated  flowing  and  freezing  of  water, 
or  the  passing  to  and  fro  of  travellers,  or  from  any 
other  cause,  it  was  a  defect  within  the  meaning  of 
this  statute  ;  and  the  fact  that  it  was  also  slippery 
did  not  make  it  the  less  a  defect.1 

The  burden  imposed  upon  towns  by  this  con- 
struction of  the  highway  act  was  of  course  heavy, 
and  the  legislature  in  1896,  possibly  led  by  such  a 
consideration,  enacted  the  following  provision :  — 

STATUTE  1896,  CHAPTER  540,  SECTION  1.  No  city 
or  town  shall  be  liable  for  any  injury  or  damage  to 
person  or  property  hereafter  received  or  suffered  in  or 
upon  any  part  of  a  highway,  town  way,  causeway  or 
bridge,  by  reason  or  in  consequence  of  snow  or  ice 
thereon,  if  the  place  at  which  the  injury  or  damage 
was  received  or  suffered  was  at  the  time  of  the  ac- 
cident otherwise  reasonably  safe  and  convenient  for 
travellers.2 

This  act  has  been  held  to  »mean  "  that  a  way 
shall  not  be  deemed  unsafe  by  reason  of  sno\v  or 
ice  thereon,  if  it  would  be  reasonably  safe  and  con- 

1  Stone    v.    Hubbardston,    100    Mass.   49    (1868).      Luther  r. 
Worcester,  97  Mass.  268  (1867).     Morse  v.  Boston,  109  Mass.  44G 
(1872).     McAuley  v.  Boston,  113  Mass.  503  (1873).     Williams  v. 
Lawrence,  113  Mass.  506  n.  (1873). 

2  Section   2.     This  act    shall    take    effect    upon    its    passage. 
Approved  June   9,   1896. 


THE   LIABILITY   OF   MUNICIPAL   CORPORATIONS.      29 

venient  for  travellers  but  for  the  presence  of  snow 
or  ice  thereon."  1 

§  22.  An  Illegal  Use  of  the  Highway  as  a  De- 
fect. —  The  principle  is  established  that  "  an  illegal 
use  of  the  highway  by  men,  animals,  vehicles,  en- 
gines or  any  other  object,  while  movable  and 
actually  being  moved  by  human  will  and  direction, 
and  neither  fixed  to,  nor  resting  on,  nor  remaining 
in  one  position  within  the  travelled  part  of  the 
highway,"  is  not  a  defect  or  want  of  repair  for 
which  a  town  is  liable.2  Thus,  a  derrick  rope, 
which  was  stretched  across  the  highway  and  at- 
tached at  either  end  to  objects  outside  the  highway, 
and  which  did  not  remain  in  one  position  but  was 
raised  and  lowered  by  the  workmen  in  the  course 
of  the  work,  is  not  a  defect  in  the  highway  for 
which  a  town  is  liable  to  a  person  injured  by  being 
brought  in  contact  therewith  while  it  was  being 
raised.3  And  so  also  a  boy  coasting  in  the  high- 
way upon  a  hand  sled  does  not  constitute  a  defect 
upon  which  a  plaintiff  who  is  struck  and  injured 
by  the  moving  sled  can  base  an  action  to  recover 
compensation  from  the  town.4 

§  23.  A  Failure  to  light  the  Highway  as  a  De- 
fect. —  If  a  town  has  provided  a  highway  that  is 

1  Newton  v.  Worcester,  169  Mass.  516,  518  (1897). 

2  Barber  v.  Roxbury,  11  Allen,  318  (1865).     Vinal  v.  Dorches- 
ter, 7  Gray,  421   (1856).     Pierce  v.  New   Bedford,  129  Mass.  534 
(1880).     Shepherd  t;.  Chelsea,  4  Allen,  113  (1862). 

8  Barber  v.  Roxbury,  11  Allen,  318  (1865). 
«  Pierce  v.  New  Bedford,  129  Mass.  534  (1880).     Shepherd  v. 
Chelsea,  4  Allen,  113  (1862). 


30  STATUTORY   TORTS   IN   MASSACHUSETTS. 

properly  constructed  and  protected  by  railings,  so 
as  to  be  safe  and  convenient  for  travel,  it  has  ful- 
filled its  duty  to  the  travelling  public.  It  is  under 
no  obligation  to  furnish  light,  and  consequently 
the  omission  to  light  the  highway  is  not  a  defect 
within  the  meaning  of  this  statute.1  And  the  fact 
that  there  is  a  city  ordinance  requiring  that  a 
light  should  be  provided  under  certain  circum- 
stances will  not  alter  this  result.2 

§  24.  Insecure  Projections  as  Defects.  —  Although 
all  the  decisions  upon  this  subject  are  perhaps  not 
easily  reconciled,  the  rule  appears  to  be  considered 
as  settled  that  a  structure,  erected  by  an  owner  of 
abutting  premises  over  the  sidewalk,  which  is  so 
insecure  and  defective  as  to  be  likely  to  fall,  is  a 
defect  in  the  highway  for  which  a  person  injured 
by  its  fall  may  recover  compensation  from  the 
town,  provided  that  such  structure  can  fairly  be 
considered,  not  as  a  mere  incident  of  the  building 
to  which  it  is  attached,  but  as  in  some  sense  re- 
lated to,  and  a  part  of,  the  sidewalk  itself.3  The 
awning  cases  are  the  typical  exemplifications  of  this 
rule.4  It  has  been  extended,  however,  so  as  to  in- 

1  Lyon  v.    Cambridge,  136   Mass.  419   (1884).     Macomber  v. 
Taunton,  100  Mass.  255  (1868).     Sparhawk  v.  Salem,  1  Allen,  30, 
32  (1861). 

2  Lyon  v.  Cambridge,  136  Mass.  419  (1884). 

8  Drake  v.  Lowell,  13  Met.  292  (1847).  Day  v.  Milford,  5 
Allen,  98  (1862).  Jones  v.  Boston,  104  Mass.  75  (1870).  Pratt  v. 
Weymouth,  147  Mass.  245,  251  (1888),  semble. 

4  Drake  v.  Lowell,  13  Met.  292  (1847).  Day  ?;.  Milford,  5 
Allen,  98  (1862). 


THE   LIABILITY   OP    MUNICIPAL   COEPORATIONS.      31 

elude  the  case  of  a  temporary  transparency,  fast- 
ened at  one  end  to  a  building  and  supported  at  the 
other  end  by  a  pole  resting  on  the  sidewalk,  which 
was  put  up  in  such  an  insecure  manner  as  to  fall 
upon  and  injure  the  plaintiff.1  But  a  sign  insecurely 
hung  out  over  the  highway  from  the  abutting  prem- 
ises to  which  alone  it  was  attached  by  means  of 
an  iron  support  has  been  held  not  to  constitute  a 
defect  in  the  way.2  A  similar  decision  was  reached 
in  the  case  of  snow  and  ice  which  projected  over 
the  sidewalk  from  the  roof  of  an.  adjoining  build- 
ing.3 The  distinction  between  these  latter  de- 
cisions and  the  awning  cases  has  been  stated  by 
Mr.  Justice  Wells,  in  Jones  v.  Boston,2  to  be  that 
"the  awning  differs  from  the  overhanging  sign, 
or  ice,  in  that  it  is  not  a  mere  incident  or  attach- 
ment of  the  building  alone,  but  is  a  structure 
erected  with  reference,  in  part  at  least,  to  the  use 
of  the  sidewalk  as  such.  The  structure  itself, 
being  adapted  to  the  sidewalk,  in  some  meas- 
ure, as  a  part  of  its  construction  and  arrange- 
ment for  use  as  a  sidewalk,  a  danger  from  its 
insecure  condition  may  reasonably  be  treated  as 
arising  from  a  defective  or  unsafe  condition  of 
the  sidewalk." 

The  indications  are  that  the  tendency  in  this 
class  of  cases  is  to  restrict,  rather  than  to  extend, 
the  field  for  the  application  of  this  rule,  and  it  has 

1  West  v.  Lynn,  110  Mass.  514  (1872). 

2  Jones  v.  Boston,  104  Mass.  75  (1870). 
8  Hixon  v.  Lowell,  13  Gray,  59  (1859). 


32  STATUTORY  TORTS   IN   MASSACHUSETTS. 

been  often  said  that  the  awning  cases  express  the 
extreme  limit  in  this  direction.1 

§  25.  Objects  that  cause  Horses  to  take  Fright  as 
Defects.  —  An  object  with  which  a  traveller  does 
not  come  into  contact,  does  not  constitute  a  defect 
in  the  highway  within  the  meaning  of  these  sec- 
tions of  the  statute,  for  the  sole  reason  that  it  is  of 
such  a  nature  as  to  cause  his  horse  to  take  fright.2 
In  the  application  of  this  rule,  it  makes  no  differ- 
ence whether  the  object  that  causes  the  fright  be 
outside  the  travelled  part,  as  in  Keith  v.  Easton,3 
or  within  the  travelled  part,  as  in  Kingsbury  v. 
Dedham ; 4  nor  yet  whether  the  fright  is  caused 
from  sight,  —  the  visible  appearance  of  the  object, 
—  as  in  Cook  v.  Montague,5  or  from  sound,  as  in 
Bowes  v.  Boston ; 6  nor  again  whether  the  object 
that  causes  the  fright  constitutes  in  itself  an  actual 
defect  in  the  highway,  as  in  Cook  v.  Charlestown,7 
or  does  not  in  itself  constitute  a  defect,  as  in 
Cook  v.  Montague.5 

1  See  Pratt  v.  Weymouth,  147  Mass.  245,  251,  252  (1888). 

As  to  shade  trees  that  have  been  set  out  along  the  highway 
constituting  a  defect  therein  by  reason  of  their  unsound  condition, 
see  Chase  v.  Lowell,  149  Mass.  85  (1889) ;  s.  c.  151  Mass.  422  (1890) ; 
by  reason  of  their  location,  see  Washburn  v.  Easton,  decided 
Feb.  28,  1899. 

2  Cook  v.  Charlestown,  98  Mass.  80  (1867).     Bemis  v.  Arling- 
ton, 114  Mass.  507,  509  (1874).     Cook  v.  Montague,  115   Mass. 
571  (1874). 

*  2  Allen,  552  (1861). 

*  13  Allen,  186  (1866). 
6  115  Mass.  571  (1874). 

6  155  Mass.  344,  350  (1892). 

7  13  Allen,  190,  n.  (1866);  s.  c.  98  Mass.  80  (1867). 


THE   LIABILITY   OF   MUNICIPAL   CORPORATIONS.       33 

"OR   OF   SUFFICIENT   RAILING." 

§  26.  The  Duty  to  erect  Railings.  —  The  obliga- 
tion to  erect  and  maintain  suitable  railings  is 
imposed  upon  towns  solely  for  the  purpose  of 
rendering  travel  upon  the  highway  itself  safe  and 
convenient.1  A  town  is  not  bound,  therefore,  to 
put  up  a  railing  in  order  to  prevent  travellers  from 
straying  out  of  the  highway,  although  there  is  a 
dangerous  place  at  some  distance  from  the  travelled 
path  which  may  be  reached  by  straying.2  Nor 
again,  in  order  to  prevent  frightened  animals  from 
escaping  from  the  highway ;  and  the  fact  that  the 
near  location  of  a  railroad  may  make  such  an 
occurrence  probable  will  not  alter  this  result.3 
And  a  town  is  under  no  obligation  to  anticipate 
and  guard  against  by  railings  ordinary  dangers 
that  are  likely  to  arise,  as  the  formation  of  ice 
upon  the  adjacent  land,  which  caused  the  plaintiff 
who  had  strayed  upon  it  to  fall.4  As  was  said  in 
Damon  v.  Boston  : 4  "  The  danger  which  requires 
a  railing  must  be  of  an  unusual  character,  such  as 
bridges,  declivities,  excavations,  steep  banks,  or 
deep  water.  Spaces  adjoining  roads,  streets,  and 
sidewalks,  and  unsuitable  for  travel,  are  often  left 

1  Stone   v.  Attlcborough,   140   Mass.   328    (1885).     Common- 
wealth v.  Wilmington,   105  Mass.  599,  601   (1870).     Stockwell  r. 
Fitchbnrg,  110  Mass.  305  (1872).     Richardson  v.  Boston,  156  Mass. 
145  (1892). 

2  Puffer  v.  Orange,  122  Mass.  389  (1877).     Sparhawk  v.  Salem, 
1  Allen,  30  (1861). 

8  Adams  v.  Natick,  13  Allen,  429  (1866). 
*  Damon  v.  Boston,  149  Mass.  147  (1889). 
3 


34  STATUTORY  TORTS   IN   MASSACHUSETTS. 

open  in  both  country  and  city ;  and  a  town  or  city 
is  not  bound  to  fence  against  them,  unless  their 
condition  is  such  as  to  expose  travellers  to  unusual 
hazard." 

§  27.  The  Test  of  the  Necessity  of  a  Railing.  — 
While  it  may  be  difficult  to  define  the  exact  extent 
of  the  obligation  to  erect  railings,  by  any  general 
proposition,  there  is  a  practical  test  that  will 
materially  aid  in  the  determination  of  any  par- 
ticular case  ;  viz.,  whether  there  is  a  dangerous 
object  or  place  so  near  to  the  line  of  travel  as  to 
make  the  use  of  the  highway  itself  unsafe  in  the 
absence  of  a  railing.1  It  becomes  thus  generally  a 
question  of  fact  for  the  jury  to  determine  how  near 
to  the  highway  a  dangerous  place  must  be,  and 
consequently  how  great  must  be  the  risk  of  com- 
ing upon  it,  in  order  to  render  the  want  of  a  rail- 
ing a  defect  within  the  meaning  of  this  provision 
of  the  statute.2  If,  however,  in  the  view  of  the  evi- 
dence most  favorable  to  the  plaintiff,  the  danger 
is  so  slight  that  it  would  be  unreasonable  to  re- 
quire the  town  to  provide  a  railing,  the  court  will 
decide  the  question  as  a  matter  of  law.3  Thus,  it 

1  Algerv.  Lowell,  3  Allen,  402  (1862).     Coggswell  v.  Lexing- 
ton, 4  Cash.  307  (1849).     Hayden  v,  Attleborough,  7  Gray,  338 
(1856).     Sparhawk  v.  Salem,  1  Allen,  30(1861).    Adams  v.  Natick, 
13  Allen,  429  (1866).     Murphy  v.  Gloucester,  105  Mass.  470,472 
(1870).     Marshall  v.  Ipswich,  110  Mass.   552    (1872).     Purple   v. 
Greenfield,  138  Mass.  1  (1884).     Logan  v.  New  Bedford,  157  Mass. 
534  (1893).     Tisdale  v.  Bridgewater,  167  Mass.  248  (1897). 

2  Barnes  v.  Chicopee,  138  Mass.  67  (1884). 

8  Scannal  v.  Cambridge,  163  Mass.  91,  93  (1895). 


THE  LIABILITY   OP   MUNICIPAL   CORPORATIONS.      35 

has  been  held  as  a  matter  of  law  that  a  dangerous 
place  was  too  remote  from  the  travelled  path  to 
make  the  absence  of  a  railing  a  defect  in  the  high- 
way where  it  was  thirty-four  feet  distant ; l  where 
it  was  twenty-five  feet  distant ; 2  where  it  was 
twenty  to  thirty  feet  distant ; 3  where  it  was  seven- 
teen feet  distant.4  But  where  the  dangerous  place 
was  twelve  feet  distant  from  the  travelled  path,  it 
was  held  that  it  could  not  be  said  as  a  matter  of 
law  that  the  risk  was  so  small  as  to  make  it  un- 
reasonable to  require  the  town  to  provide  a  railing.8 

In  order  to  determine  whether  a  dangerous  place 
is  in  such  close  proximity  to  the  highway  as  to 
render  travelling  upon  it  unsafe,  "  that  proximity 
must  be  considered  with  reference  to  the  highway 
as  travelled  and  used  for  public  travel,  rather  than 
as  located."6 

But  while  the  proximity  of  some  dangerous 
object  or  place  is  the  "  essential  and  invariable  ele- 
ment "  in  all  cases  where  a  railing  is  required,  the 
circumstances  surrounding  the  particular  locality 
in  question  must  also  be  taken  into  consideration. 
Thus,  the  character  of  the  intervening  ground,  the 

1  Barnes  v.  Chicopee,  138  Mass.  67  (1884). 

2  Murphy   o.   Gloucester,    105  Mass.   470    (1870).     Hudson   v. 
Marlborough,  154  Mass.  218  (1891). 

8  Puffer  v.  Orange,  122  Mass.  389  (1877).  Daily  v.  Worcester, 
131  Mass.  452  (1881). 

*  Scannal  v.  Cambridge,  163  Mass.  91,  93  (1895). 

6  Tisdale  v.  Bridgewater,  167  Mass.  248  (1897). 

6  Barnes  v.  Chicopee,  138  Mass.  67  (1884).  Warner  v.  Hoi- 
yoke,  112  Mass.  362  (1873). 


36  STATUTORY   TORTS   IN   MASSACHUSETTS. 

risk  of  coming  upon  the  dangerous  object  or  place, 
the  degree  of  danger  incurred  if  one  does  come 
upon  it,  and  like  practical  questions,  are  all 
involved  in  the  issue.1 

§  28.  Barriers  erected  to  close  a  Highway  or  to 
guard  an  Excavation.  —  A  town  has  the  right  to 
temporarily  close  a  highway  for  the  purpose  of 
making  repairs,  but  if  it  does  so,  it  must  show,  in 
order  to  escape  liability  to  a  person  injured  while 
using  or  attempting  to  use  such  way,  that  it  was 
in  fact  closed  by  suitable  and  sufficient  barriers.2 
Whether  the  barriers  erected  by  the  town  were 
suitable  and  sufficient  under  the  circumstances  to 
notify  the  traveller  that  the  highway  was  closed  is 
usually  a  question  for  the  jury  to  decide.8  The 
determination  of  the  question  may  involve  several 
considerations,  such  as  the  situation  of  the  high- 
way ;  the  modes  commonly  adopted  for  closing 
highways;  the  traveller's  knowledge  of  such 
modes ; 4  and  similar  facts. 

So  also  if  a  town  makes,  or  allows  to  be  made, 
an  excavation  within  the  highway,  it  is  bound  to 

1  See  Adams  v.  Natick,  13  Allen,  429  (1866). 

2  White  v.  Boston,  122  Mass.  491  (1877). 

But  a  town  has  no  right  to  erect  permanent  barriers  within  a 
highway  in  order  to  change  the  line  of  travel,  and  therefore  a 
railing  erected  for  that  purpose  by  the  selectmen  may  constitute 
a  defect  for  which  the  town  will  be  liable.  Pratt  v.  Amherst,  140 
Mass.  167  (1885). 

3  Howard  v.   Mendon,    117   Mass.   585    (1875).      Norwood  v. 
Somerville,  159  Mass.  105  (1893). 

*  See  White  v.  Boston,  122  Mass.  491  (1877). 


THE    LIABILITY   OF   MUNICIPAL   CORPORATIONS.      37 

erect  such  barriers  or  other  safeguards  as  will 
render  travel  upon  that  part  of  the  highway  safe 
and  convenient.  If  it  has  done  this,  it  will  not  be 
liable  to  a  person  injured  in  consequence  of  such 
excavation,  even  if  the  barriers  were  afterwards 
removed  by  third  persons,  unless  it  further  appears 
that  the  town  knew,  or,  under  the  circumstances 
of  the  particular  case,  ought  to  have  known,  of 
such  removal.1 

§  29.  The  Kind  of  Railing  required.  —  Towns 
must  anticipate  and  provide  for  the  usual  demands 
of  travel  upon  their  highways ;  if  they  have  done 
this,  they  have  fulfilled  their  whole  duty  under  the 
statute.  In  the  matter  of  railings,  therefore,  they 
are  bound  simply  to  provide  such  a  kind  as  is  "  suit- 
able for  the  ordinary  exigencies  of  travel  upon  such 
a  road  at  such  a  place."  2  And  it  follows  that  if 
a  railing  is  used  for  any  purpose  other  than  the 
requirements  of  ordinary  travel,  and  a  person  is 
injured  in  consequence,  he  cannot  recover  damages 
from  the  town,  even  though  it  also  appears  that 
the  railing  was  so  defective  that  it  would  not  have 
withstood  the  usual  strains  of  travel.  Thus,  a 

1  Doherty  v.  Waltham,  4  Gray,  596  (1855).    Myers  v.  Spring- 
field, 112  Mass.  489  (1873). 

Where  a  part  of  the  width  of  a  sidewalk  was  railed  off,  and  the 
plaintiff,  in  order  to  get  around  the  barriers,  attempted  to  pass 
upon  that  part  of  the  street  which  was  wrought  and  used  for  car- 
riages, and  was  there  injured  by  reason  of  a  defect,  it  was  held 
that  it  was  a  question  to  be  submitted  to  the  jury  whether  he  was 
justified  in  so  doing.  Gerald  v.  Boston,  108  Mass.  580  (1871). 

2  Lyman  r.  Amherst,  107  Mass.  339,  346  (1871),  point  5. 


38  STATUTORY  TORTS  IN  MASSACHUSETTS. 

railing  which  was  not  of  sufficient  strength  to  sus- 
tain the  weight  of  a  person  who  purposely  leaned 
against  it  for  support  while  engaged  in  conversa- 
tion, is  not  insufficient  within  the  meaning  of  this 
clause  of  the  statute.1 

The  question  whether  a  railing  suitable  for  the 
ordinary  exigencies  of  travel,  if  such  a  railing  had 
been  provided  by  the  town,  would  have  prevented 
an  accident  which  occurs  at  a  place  where  it  is 
alleged  a  railing  ought  to  have  been  maintained,  is 
a  question  of  fact  for  the  jury.2 

§  30.  Pleading.  —  Under  a  declaration  simply 
alleging  a  want  of  repair  in  a  way,  the  plaintiff 
may  prove  that  the  way  was  defective  by  reason  of 
the  want  of  a  railing  to  protect  travellers  from 
going  down  a  declivity  just  outside  the  limits  of 
the  way.3 

"IN  OK  UPON  A  HIGHWAT,4  TOWN  WAY,5  CAUSEWAY, 
OR  BRIDGE." 

§  31.  How  the  Liability  may  be  fixed  upon  the 
Town.  —  A  plaintiff  cannot  maintain  an  action 
under  these  sections  of  the  statute  by  simply  show- 
ing that  he  was  injured  by  reason  of  a  defect  in  a 

1  Stickney  v.  Salem,  3  Allen,  374  (1862). 

2  Lyman  v.  Amherst,  107  Mass.  339,  346  (1871),  point  5. 
8  Alger  v.  Lowell,  3  Allen,  402,  405  (1862). 

4  As  to  the  liability  in  case  of  an  injury  resulting  from  a  defect 
in  a  State   highway,  see  St.  1893,  ch.  476,  s.   13;  St.   1894,    ch. 
497,  s.  6. 

5  For  the  distinction  between  a  highway  and  a  town  way,  see 
Blackstone  v.  County  Commissioners,  108  Mass.  68  (1871). 


THE   LIABILITY    OP   MUNICIPAL   CORPORATIONS.      39 

way ;  he  must  also  show  that  the  way  where  the 
accident  happened  was  a  highway  or  town  way  for 
the  defect  in  which  the  town  was  responsible.  He 
must,  in  other  words,  prove  the  legal  establishment 
of  the  way.  This  he  may  do  by  means  of  any  one 
of  several  lines  of  proof :  by  showing  by  the  records 
the  due  location,  construction,  and  acceptance  of 
the  way  by  the  proper  authorities,  in  accordance 
with  the  provisions  of  the  statutes ; 1  by  showing 
a  general  and  uninterrupted  use  of  the  way  by  the 
public,  continued  for  the  length  of  time  necessary 
to  establish  a  prescription  ; 2  by  showing  a  dedica- 
tion of  the  way  to  the  public  by  the  owner  of  the 
soil,  and  an  acceptance  of  it  by  the  town  prior  to 
1846  ; 3  by  showing  that  the  town  had  made  re- 
pairs upon  the  way  within  six  years  prior  to  the 
accident ; 4  by  showing  an  award  of  commissioners 
by  virtue  of  which  the  duty  to  repair  was  imposed 
upon  the  town. 5 

§  32.  Highways  established  by  Statute  Mode.  — 
Two  things  done  by  the  proper  authorities  must 

1  Pub.   Sts.   ch.   49.     Bliss  v.  Deerfield,  13   Pick.   102    (1832), 
Drury  v.  Worcester,  21  Pick.  44  (1838). 

2  Veale  v.  Boston,  135  Mass.  187  (1883).     Aston  v.  Newton,  134 
Mass.  507  (1883).     Gould  v.  Boston,  120  Mass.  300  (1876).    Taylor 
v.  Boston  Water  Power  Company,  12  Gray,  415  (1859).     Jennings 
v.  Tisbury,  5  Gray,  73  (1855). 

8  Hobba  v.  Lowell,  19  Pick.  405  (1837).  Hayden  v.  Stone,  112 
Mass.  346  (1873).  McKenna  U.Boston,  131  Mass.  143  (1881).  Pnb. 
Sts.  ch.  49,  s.  94. 

4  Pub.  Sts.  ch.  52,  s.  25.     Hayden  ».  Attleborough,  7  Gray,  338 
(1856).     Wilson  v.  Boston,  117  Mass.  509  (1875). 

5  Whitman  v.  Groveland,  131  Mass.  553,  557  (1881). 


40  STATUTORY   TORTS  IN   MASSACHUSETTS. 

concur  to  establish  under  the  general  law  a  high- 
way for  the  defects  in  which  a  town  is  liable : 
first,  an  adjudication  that  the  way  was  of  common 
convenience  and  necessity,  and  a  location  of  it; 
and,  second,  a  construction  and  opening  of  it  to 
the  public  for  use.1  Any  illegality  in  either  pro- 
ceeding can  be  taken  advantage  of  by  the  town  in 
defence,  even  though  the  way  has  been  used  and 
repaired  as  a  highway.2 

After  a  way  has  been  duly  located  and  constructed 
by  the  proper  authorities,  in  accordance  with  the 
provisions  of  the  statutes,  no  formal  act  of  accept- 
ance is  necessary  in  order  to  impose  the  duty 
and  liability  of  these  sections.  As  was  said  by 
Chief  Justice  Shaw,  in  Drury  v.  Worcester : 3 
"  After  a  highway  has  been  regularly  laid  out,  by 
competent  authority,  a  time  fixed  for  the  town  to 
complete  it,  and  it  is  subsequently  actually  opened 
to  the  use  of  the  public,  those  who  have  the  right 
to  use  it,  may  presume  that  what  was  to  be  done 
by  way  of  acceptance,  has  been  done,  and  that  it 
lias  become  in  fact  a  public  highway.  .  .  .  When- 

1  Pub.  Sts.   ch.   49.     Bliss   v.  Deerfield,  13   Pick.  102   (1832). 
Drury  v.  Worcester,  21    Pick.  44  (1838).     And   see  Bowman  v. 
Boston,  5  Cush.  1  (1849). 

2  Jones  v.  Andover,  9  Pick.  146  (1829). 

Towns  are  only  bound  to  keep  in  repair  tbeir  highways  as 
located  and  laid  out  by  the  proper  authorities ;  this  duty  docs  not 
extend  beyond  the  limits  so  defined.  If,  therefore,  there  are  de^ 
feets  in  the  way  due  to  the  location,  as  narrowness  or  crookedness, 
the  town  is  not  responsible  for  them.  Smith  v.  "\Vakefield,  105 
Mass.  473  (1870). 

8  21  Pick.  44,  49  (1838). 


THE  LIABILITY   OF  MUNICIPAL   CORPORATIONS.      41 

ever  by  positive  act  or  tacit  permission,  a  town 
suffers  a  highway  to  be  opened  to  public  use,  and  to 
be  actually  used  by  the  public,  the  town  becomes 
responsible  for  its  condition." 

§  33.  Highways  established  by  Prescription. 1  — 
A  constant  and  uninterrupted  use  and  enjoyment 
of  a  way  by  the  public,  continued  for  the  requisite 
number'of  years,2  will  establish  a  highway  by  pre- 
scription, on  the  ground  that  a  user  of  such  a 
character  raises  a  conclusive  presumption  that  the 
way  was  originally  laid  out  and  accepted  by  com- 
petent authority.3  Nothing,  therefore,  except  such 
user  need  be  shown.4 

§  34.  Highways  established  by  Dedication.  —  Two 
distinct  elements  are  essential  to  the  establish- 


1  "  Perhaps  it  would  not  be  too  much  to  say,  that  a  large  por- 
tion of  the  public  ways,  whether  they  be  considered  public  high- 
ways, or  town  ways,  stand  upon  no  other  title  but  prescription." 
Chief  Justice  Shaw  in  Jennings  v.  Tisbury,  5  Gray,  73  (1855). 

In  the  city  of  Boston,  public  footways  may  exist  by  prescrip- 
tion, which  the  city  is  bound  to  keep  in  repair.  Gould  v.  Boston, 
120  Mass.  300  (1876). 

2  The  time  of  prescription  is  now  to  be  considered  as  fixed  at 
twenty  years.     Jennings  v.  Tisbury,  5  Gray,  73  (1855).     As  to  the 
effect  of  a  relocation  of  the  way  upon  the  running  of  the  twenty 
years,  see  Stockwell  v.  Fitchburg,  110  Mass.  305  (1872). 

8  Veale  v.  Boston,  135  Mass.  187  (1883).  Aston  V.  Newton,  134 
Mass.  507  (1883).  Commonwealth  v.  Coupe,  128  Mass.  63  (1880). 
Taylor  v.  Boston  Water  Power  Company,  12  Gray  415  (1859). 

4  Jennings  v.  Tisbury,  5  Gray,  73  (1855). 

The  statute  of  1846,  ch.  203  (Pub.  Sts.  ch.  49,  s.  94),  has  no  ap- 
plication to  ways  by  prescription  :  they  can  be  established  by  this 
mode  as  well  since  as  before  the  passage  of  that  act.  Com.  v. 
Coupe,  128  Mass.  63  (1880). 


42  STATUTORY  TORTS   IN  MASSACHUSETTS. 

ment  of  a  highway  by  dedication  :  first,  an  appro- 
priation of  the  soil  by  the  owner  to  the  use  of  the 
public  for  a  highway  ; 1  and,  second,  an  acceptance 
of  it,  either  express  or  implied,  by  the  town.3 
These  two  acts,  as  soon  as  done  by  the  respective 
parties,  complete  the  dedication  and  establish  the 
way  as  a  highway :  no  lapse  of  time  is  necessary.3 
The  intent  of  the  owner  of  the  soil  of  a  road  to 
appropriate  it  to  the  use  of  the  public  for  a  high- 
way must  be  shown  by  unequivocal  acts  or  declara- 
tions.4 And  so  also  the  acquiescence  in  that  appro- 
priation by  the  town  or  by  its  officers,  acting 
within  the  scope  of  their  authority,  must  clearly 
appear.5  Mere  user  by  the  public,  though  strong 
evidence,  is  not  alone  sufficient  to  establish  either 
fact.4  And  since  the  statute  of  1846,  ch.  203,6 
the  acceptance  of  the  town  can  only  be  given  by 

1  "  He  who  gives  his  land   to   the  public  may  prescribe  the 
terms  and  limitations  on  which  he  gives  it,  and  if  it  be  accepted  at 
all,  it   must   be  accepted  with  the   limitations,  qualifications  and 
restrictions  prescribed.  ...  If  it  be  given  for  a  special  and  lim- 
ited use  aud  purpose,  as  for  a  footway,  it  must  be  accepted  and 
held  for  that  use  only ;  or  it  must  fail  altogether,  and   then  no 
public  right  is  established  by  the  gift."     Chief  Justice  Shaw  in 
Hemphill  v.  Boston,  8  Cush.  195  (1851).    If,  therefore,  a  highway 
is  established  by  dedication  for  use  as  a  footway,  the  town  is  not 
liable  to  a  person  injured  while  using  it  for  other  purposes,     s.  c. 

2  Hobbs  v.  Lowell,  19   Pick.  405    (1837).     Bowers   v.  Suffolk 
Manufacturing  Company,  4  Cush.  332,  340  (1849). 

8  See  Taylor  v.  Woburn,  130  Mass.  494,  500  (1881). 
*  See  Hayden  v.  Stone,  112  Mass.  346  (1873). 
6  McKenna  v.  Boston,  131  Mass.  143  (1881).    Bowers  v.  Suffolk 
Manufacturing  Company,  4  Cush.  332,  340  (1849). 
6  Pub.  Sts.  ch.  49,  s.  94. 


THE   LIABILITY   OF   MUNICIPAL   CORPORATIONS.      43 

laying  out  the  way  in  accordance  with  the  mode 
prescribed  by  the  statutes.1 

§  35.  Evidence  of  Repairs.  —  By  virtue  of  statute 
provision,2  repairs  made  by  a  town  upon  a  way 
within  six  years  before  an  accident  are  conclu- 
sive as  to  its  location.3  The  actual  making  of  re- 
pairs must  be  shown,  however,  in  order  to  have 
this  effect:  a  vote  of  the  town  to  make  repairs, 
so  long  as  unexecuted,  is  not  enough.4 

The  making  of  repairs  is  conclusive  only  upon 
the  question  of  the  location  of  the  way,  and  not 
necessarily  upon  the  question  of  the  responsibility 
of  the  town  for  its  defects.  Thus,  if  the  liability 
for  defects  in  a  way  is  imposed  by  statute  upon 
another,  the  town  cannot  be  made  responsible  by 
showing  repairs  made  by  it  within  six  years  before 
the  accident.5 

§  36.  The  Liability  •with  Reference  to  Private 
"Ways.  —  A  way  that  has  been  appropriated  by  the 
owner  of  the  soil  to  the  public  use  since  the  pass- 
age of  the  statute  of  1846,  ch.  203,6  but  has  not 
been  laid  out  by  the  town  in  accordance  with  the 

1  Guild  v.  Shedd,  150  Mass.   255   (1889).    Morse  v.  Stocker, 
1  Allen,  150,  154  (1861). 

2  Pub.  Sts.  ch.  52,  s.  25.     "  The  statute  was  adopted  originally 
to  remedy  the  difficulty  of  proving  the  legal  establishment  of  ways, 
arising  from  absence  or  defects  of  records  thereof."    Wilson  v. 
Boston,  117  Mass.  509  (1875). 

3  Hayden   v.   Attleborough,   7   Gray,  338   (1856).     Taylor  v. 
Woburn,  130  Mass.  494,  500,  502  (1881). 

*  Brown  v.  Lawrence,  120  Mass.  1  (1876). 
6  Wilson  v.  Boston,  117  Mass.  509  (1875). 
6  Pub.  Sts.  ch.  49,  ss.  94  &  ff. 


44  STATUTORY  TORTS  IN  MASSACHUSETTS. 

provisions  of  that  act,  imposes  no  liability  upon 
the  town  under  these  sections  of  the  highway  act, 
provided  the  town  has  either  closed  the  entrance 
to  such  way,  or  given  sufficient  notice  that  it  was 
dangerous.1  A  notice  stating  that  such  way  is  a 
private  way  and  is  dangerous,  so  posted  as  to  be 
conspicuous  and  legible  to  persons  entering  thereon, 
is  a  sufficient  notice  to  satisfy  this  rule.2 

"WHICH  MIGHT  HAVE  BEEN  REMEDIED,  OR  WHICH 
DAMAGE  OR  INJURY  MIGHT  HAVE  BEEN  PREVENTED  BY 
REASONABLE  CARE  AND  DILIGENCE."3 

§  37.  The  General  Effect  of  the  Provision.  —  Prior 
to  1877  the  fact  that  the  plaintiff  was  injured  by  a 
defect  in  the  highway  which  had  existed  for  the 
requisite  length  of  time,  was  enough  to  fasten  the 

1  Smith  v.  Lowell,  139  Mass.  336  (1885).     Paine  v.  Brockton, 
138  Mass.  564  (1885).     Durgin  v.  Lowell,  3  Allen,  398  (1862). 

2  Smith  v.  Lowell,  139  Mass.  336  (1885). 

As  to  the  liability  for  an  injury  resulting  from  a  defect  in  a 
private  sidewalk,  which  was  laid  out  and  paved  continuous  with 
the  sidewalk  of  the  street  and  apparently  formed  a  part  of  it, 
see  Holmes  v.  Drew,  151  Mass.  578  (1890).  As  to  the  individual 
liability  for  a  defective  coal-hole  set  in  the  sidewalk,  see  Fisher  v. 
Cushing,  134  Mass.  374  (1883).  Stevenson  v.  Joy,  152  Mass.  45 
(1890).  As  to  liability  for  defects  in  a  footpath,  —  1st,  across  a 
common,  see  Clark  v.  Waltham,  128  Mass.  567  (1880).  Steele  v. 
Boston,  128  Mass.  583  (1880).  2d,  by  the  side  of  a  country  road, 
see  Whitford  v.  Southbridge,  119  Mass.  564  (1876).  As  to  the 
liability  for  defects  in  streets  on  certain  lands  under  the  care  and 
control  of  the  Metropolitan  Park  Commission,  see  St.  1898,  ch.  455. 
As  to  the  liability  for  defects  in  public  alleys  in  the  city  of  Boston, 
see  St.  1898,  ch.  298,  s.  2. 

8  This  provision,  it  is  to  be  observed,  is  not  incorporated  in 
section  seventeen  of  the  statute. 


THE   LIABILITY   OF   MUNICIPAL   CORPORATIONS.      45 

liability  upon  the  town,  without  regard  to  the  ques- 
tion whether  or  not  its  continuance  could  have  been 
prevented  by  the  exercise  of  reasonable  care.1  In 
that  year,  however,  the  legislature  incorporated2 
the  present  provision  in  the  highway  acts,  with  the 
evident  intention  of  relieving  towns  from  this 
liability  in  all  cases  where  there  was  no  lack  of 
proper  diligence  on  their  part  in  seeking  to  remedy 
the  defective  condition  that  caused  the  injury.8 
The  courts  hold,  therefore,  that  the  effect  of  this 
clause  is  to  create  a  condition  precedent,  which  the 
plaintiff  must  satisfy  by  direct  evidence  or  proper 
inference.4 

§  38.  "What  Evidence  is  competent  under  this 
Provision.  —  Perhaps  the  most  important  piece 
of  evidence  bearing  upon  the  issue  raised  by  this 
provision  is  that  relative  to  the  length  of  time  dur- 
ing which  the  defect  has  existed.5  But  it  is  also 
competent  to  put  in  evidence  all  facts  that  have  a 
tendency  to  show  what  the  town  could  reasonably 
be  required  to  do  under  the  existing  conditions,  in 
order  to  keep  its  highways  safe  and  convenient  for 

1  Therefore,  before  this  date  the  fact  that  the  town  had  used 
reasonable  care  in  repairing  a  way  constituted  no  defence,  provided 
the  way  was  not  in  fact  made  safe  and  convenient.     Bodwell  v. 
North  Andover,  110  Mass.  511,  512  (1872).     Billings  v.  Worcester, 
102  Mass.  329,  S33  (1867).     Horton  v.  Ipswich,  12  Cash. 488  (1853). 

2  St.  1877,  ch.  234. 

3  See  Flanders  v.  Norwood,  141  Mass.  17  (1886).    Rooney  v. 
Randolph,  128  Mass.  580  (1880). 

4  Murphy  v.  Worcester,  159  Mass.  546  (1883). 

6  Murphy  v.  Worcester,  159  Mass.  546,  550  (1883). 


46  STATUTORY  TORTS   IN   MASSACHUSETTS. 

travel.  Thus  "  the  length  of  the  roads  which  it  is 
obliged  to  maintain,  the  ease  or  difficulty  of  main- 
taining them,  the  amount  of  travel  over  them,  and 
the  amount  of  assessable  property  in  the  town,  are 
all  elements  to  be  considered  in  determining  how 
high  a  degree  of  excellence  can  reasonably  be  re- 
quired of  a  town  in  the  construction  and  repair  of 
any  particular  piece  of  road."  l  How  minutely  the 
parties  shall  be  allowed  to  go  into  such  collateral 
issues,  is  a  matter  within  the  discretion  of  the 
presiding  judge.2 

"  ON  THE  PART  OF  THE  COUNTY,  TOWN,  PLACE,  OR 
PERSONS." 

§  39.  The  Use  of  the  Word  "Persons."  —  "The 
mention  of  persons  in  the  statute,  alongside  of  coun- 
ties and  towns  obliged  to  repair,  is  easily  explained. 
The  outline  of  our  scheme  was  of  ancient  date  and 
English  origin.  In  England,  while  parishes  were 
generally  bound  to  repair  highways  and  bridges,  a 
person  might  be,  ratione  tenurce,  or  otherwise.  The 
language  of  our  act  was  probably  suggested  by  that 
of  earlier  legislation  in  England.  But  we  cannot 
say,  and  probably  the  Legislature  of  1786  could  not 
have  said,  that  there  were  no  cases  in  the  Common- 
wealth where  persons  other  than  counties  or  towns 
were  bound  to  keep  highways  in  repair.  The  words 

1  Sanders  v.  Palmer,  154  Mass.  475  (1891).     Rooney  v.  Ran- 
dolph, 128  Msss.  580  (1880).     Hayes  v.  Cambridge,  136  Mass.  402 
(1884). 

2  See  Sanders  v.  Palmer,  154  Mass.  475  (1891). 

See  also  on  this  subject  Hoey  v.  Natick,  153  Mass.  528  (1891). 


THE   LIABILITY   OF  MUNICIPAL   CORPORATIONS.      47 

*  where  other  sufficient  provision  is  not  made 
therefor,'  in  the  first  section  of  the  statute  of  1786, 
imposing  the  duty  on  the  inhabitants  of  towns,  sug- 
gests that  there  were  such  cases.  Even  if  there 
were  not,  it  was  a  natural  precaution  to  use  the 
words."1 

"BY    LAW   OBLIGED    TO    REPAIR   THE    SAME." 

§  40.  The  Extent  of  the  Duty  to  repair.  —  The 
liability  created  by  these  sections  of  the  statute  is 
not  an  altogether  absolute,  but  is  a  qualified  one. 
Thus  by  the  terms  of  this  provision  towns  are 
responsible  for  injuries  received  in  consequence  of 
defects  in  its  highways  if,  and  only  if,  they  are 
obliged  by  law  to  repair  them.  If,  therefore,  other 
sufficient  provision  has  been  made  for  keeping  a 
highway  safe  and  convenient  for  travel,  the  town 
is  entirely  relieved  from  this  liability  with  respect 
to  it,2  even  though  it  has  assumed  and  performed 
the  duty  of  repairing  it.8  But  this  liability  cannot 
be  so  limited  by  mere  implication,  save  in  so  far 
as  a  town  is  actually  deprived  of  the  power  to 
perform  its  duty."  4 

And  so  also,  by  the  express  terms  of  the  statute,6 

1  Mr.  Justice  Holmes  in  Fisher  v.  Gushing,  134  Mass.  374,  375 
(1883). 

2  Sawyer  v.  Northfield,  7  Cush.  490,  496,  point  2  (1851).     Wil- 
son i7.  Boston,  117  Mass.   509,  512   (1875).     Carter  v.  Boston  & 
Providence  Railroad,  139  Mass.  525  (1885). 

•  Wilson  v.  Boston,  117  Mass.  509  (1875). 

4  Davis  v.  Leominster,  1  Allen,  182  (1861).    Jones  v.  Waltham, 
4  Gush.  299  (1849). 

5  Pub.  Sts.  ch.  52,  s.  1. 


48  STATUTORY  TORTS   IN   MASSACHUSETTS. 

towns  are  only  liable  for  defects  in  highways  that 
are  within  their  own  territorial  limits.  But  the 
duty  to  repair  a  portion  of  a  highway  that  is  out- 
side of  its  corporate  limits  may  be  imposed  upon 
a  town  by  an  award  of  County  Commissioners,  in 
which  case  the  liability  of  these  sections  will  also 
attach.1 

Moreover,  the  obligation  to  repair,  and  con- 
sequently the  liability,  is  also  limited  by  the  exi- 
gencies of  travel  in  the  particular  locality.  "  The 
obligation  of  these  municipal  corporations  is,  not 
to  keep  all  their  ways  and  bridges  in  the  highest 
possible  state  of  repair,  or  so  as  to  afford  the 
utmost  convenience  to  those  who  have  occasion  to 
use  them ;  but  only  in  such  condition  that,  having 
in  view  the  common  and  ordinary  occasions  for 
their  use,  and  what  may  fairly  be  required  for  the 
proper  accommodation  of  the  public  at  large  in  the 
various  occupations  which  may  from  time  to  time 
be  pursued,  each  particular  way  shall  be  so  wrought, 
prepared  and  maintained  that  it  may  justly  be  con- 
sidered, for  all  the  uses  and  purposes  for  which  it 
was  laid  out  and  designed,  to  be  reasonably  safe  and 
convenient.  .  .  .  They  are  not  required  to  make 
preparations  for  the  safety  or  convenience  of  those 
who  undertake  to  use  those  ways  in  an  unusual 
or  extraordinary  manner,  involving  peculiar  and 
special  peril  and  danger,  whether  it  be  in  respect 
to  the  kind  or  character  of  animals  led  or  driven, 
or  the  magnitude  or  construction  of  carriages  used, 

1  Whitman  v.  Groveland,  131  Mass.  553  (1881). 


THE   LIABILITY   OP  MUNICIPAL   CORPORATIONS.      49 

or  the  bulk  or  weight  of  property  transported."  l 
Thus  whether  or  not  a  town  is  liable  for  an  injury 
resulting  to  an  elephant  from  a  defect  in  a  high- 
way over  which  it  was  being  led  depends  upon 
whether  the  jury  find  that  "  an  elephant,  consid- 
ered in  reference  to  the  time  and  place  when  and 
where,  and  the  manner  in  which  he  was  driven, 
was  an  animal  suitable  and  proper  to  be  driven  " 
upon  the  highway.2 

§  41.  The  Obligation  to  repair  not  affected  by 
the  Location  of  Roads  operated  by  other  Corporations 
within  the  Highway.  —  The  fact  that  a  railroad 
crosses  a  highway  at  grade,  or  that  a  street  rail- 
way has  laid  its  tracks  through  the  streets,  does 
not  of  itself  relieve  a  town  from  its  duty  to  repair, 
except  in  so  far  as  it  may  be  actually  prevented  from 
performing  that  duty  by  the  necessary  use  of  the 
tracks  by  such  corporations.3  As  a  general  rule, 
therefore,  a  town  is  primarily  liable  for  injuries 
resulting  from  defects  in  that  part  of  a  highway 
which  is  within  the  limits  of  the  location  of  a  rail- 
road,4 or  of  a  street  railway,6  even  though  the 

1  Per  Mr.  Justice  Merrick  in  Gregory  v.  Adams,  14  Gray,  242, 
(1859),  at  pages  246  and  248. 

2  Gregory  v.  Adams,  14  Gray,  242  (1859). 

3  Davis  v.  Leominster,  1  Allen,  182  (1861).    Jones  v.  Waltham, 
4  Cush.  299  (1849). 

4  Pollard  v.  Woburn,  104  Mass.  84  (1870).    Davis  v.  Leomin- 
ster, 1  Allen,  182  (1861). 

6  Prentiss   v.   Boston,    112   Mass.   43,   48    (1873).      Hawks  v. 
Northampton,  116  Mass.  420  (1875).     Bailey  v.  Boston,  116  Mass. 
423,  n.  (1875).     Lawrence  v.  New  Bedford,  160  Mass.  227  (1893). 
As  to  the  liability  of  street-railway  companies  for  injuries  suf- 
4 


50  STATUTORY   TORTS   IN   MASSACHUSETTS. 

defect  is  caused  by  the  negligence  of  those  corpo- 
rations themselves.  But  if  the  defect  is  due  to 
matters  which  the  construction  and  operation  of 
such  roads  necessarily  place  it  beyond  the  power 
of  the  town  to  remedy,  there  is  no  liability.  Thus, 
if  a  corporation  has  been  duly  authorized  to  cross 
a  highway  at  grade,  or  to  construct  and  operate 
its  road  through  the  streets,  "  the  existence  of  its 
tracks  properly  constructed,  and  the  proper  opera- 
tion of  its  road,  cannot  be  a  defect  in  the  streets  for 
which  the  town  is  liable,  even  though  they  render 
the  streets  dangerous."  l  In  such  cases,  therefore, 
the  town  is  entitled  to  have  the  jury  instructed 
that  although  portions  of  the  construction  of  a 
street  railway  may  present  obstacles  to  travel  and 
dangers  to  those  using  vehicles,  yet  if  such  portions 
are  necessary  to  its  operation  as  a  street  railway, 
they  are  not  defects  in  the  highway  for  which  the 
town  is  liable.2 

§  42.  The  Duty  not  avoided  by  Delegation.  —  The 
duty  to  make  its  highways  safe  and  convenient  for 
travel  is  absolute  in  its  nature,  within  the  limits 
noted  above,8  and  a  town  is  bound  at  its  peril  to 

fered  during  the  construction,  alteration,  etc.,  of  their  railways, 
see  Acts,  1898,  ch.  578,  s.  11. 

1  Lawrence  v.  New  Bedford,  160  Mass.  227   (1893).     Jones  r. 
Waltham,  4  Cush.  299  (1849).     Vinal  v.  Dorchester,  7  Gray,  421 
(1856).     See  also  Young  v.  Yarmouth,  9  Gray,  386  (1857),  where 
the  same  rule  was  applied  to  the  poles  of  an  electric  telegraph 
company. 

2  Fowler  v.  Gardner,  169  Mass.  505,  509  (1897). 
8  See  §  40,  ante. 


THE  LIABILITY   OP  MUNICIPAL   CORPORATIONS.      51 

see  that  it  is  performed.  It  cannot,  therefore,  in 
any  degree  escape  the  liability  of  these  sections  by 
intrusting  this  duty  to  third  parties,  although  they 
may  be  competent :  by  so  doing  it  becomes  re- 
sponsible for  the  negligence,  whether  momentary 
or  otherwise,  of  the  party  so  intrusted.1 

"  IP  SUCH  COUNTY,  TOWN,  PLACE,  OR  PERSONS  HAD 
REASONABLE  NOTICE  OF  THE  DEFECT,  OR  MIGHT  HAVE 
HAD  NOTICE  THEREOF  BY  THE  EXERCISE  OF  PROPER 
CARE  AND  DILIGENCE  ON  THEIR  PART. "  2 

§  43.  General  Effect  of  the  Provision.  —  This 
clause  of  the  statute  does  not  change  the  common- 
law  rule  as  to  what  constitutes  reasonable  care  and 
diligence,  but  simply  creates  a  condition  precedent 
to  the  right  of  the  plaintiff  to  recover.8  As  a  general 
rule,  therefore,  the  burden  rests  upon  him  to  es- 
tablish the  fact  that  the  defect  which  caused  his 
injury  was  one  of  which  the  town  had  knowledge, 
or  might,  by  the  exercise  of  reasonable  care  and 
diligence,  have  had  knowledge,  in  time  to  have 
remedied  it  or  to  have  prevented  the  injury.4  But 

1  Blessington   v.    Boston,   153   Mass.  409   (1891).    Prentiss  v. 
Boston,  112.  Mass.  43,  48  (1873).     Brooks  v.  Somerville.  106  Mass. 
271,  274  (1871).     Merrill  v.  Wilbraham,  11  Gray,  154  (1858).     See 
also  Woodman  v.  Metropolitan  Railroad,  149  Mass.  335  (1889). 

If  the  operations  of  a  corporation  constitute  a  discontinuance  of 
a  highway,  then  the  liability  of  the  town  ceases.  Tinker  v.  Rus- 
sell, 14  Pick.  279  (1833). 

2  Only  the  first  part  of  this  clause  is  incorporated  in  section 
seventeen  of  the  statute. 

8  Blessington  v.  Boston,  153  Mass.  409,  412  (1891). 

*  Stanton  v.  Salem,  145  Mass.  476  (1888).     Blake  v.  Lowell, 


52  STATUTORY  TORTS   IN   MASSACHUSETTS. 

if  it  appears  that  the  defective  condition  was  due 
to  the  acts  of  the  town  itself  or  of  persons  whose 
acts  were  constructively  its  own,  the  plaintiff  need 
not  prove  any  notice  whatsoever.1 

§  44.  Notice  to  whom.  —  The  notice  to  the  town 
for  which  provision  is  here  made  is  a  notice  to 
those  of  its  officials  whose  duty  it  is  to  look  after 
municipal  affairs.2  It  has  been  held,  therefore, 
that  notice  to  one  or  more  of  the  inhabitants  of 
the  town,3  or  notice  to  the  janitor  of  a  public  school 
house,4  was  not  notice  to  the  town  within  the 
meaning  of  this  clause. 

§  45.  Actual  Notice.  —  Actual  notice  of  a  defect 
in  the  highway,  within  the  meaning  of  this  pro- 
vision, is  simply  knowledge  on  the  part  of  the 
proper  officers  of  the  town  of  that  condition  of 
things  which  is  alleged  to  constitute  a  defect. 
Whether  or  not  the  town  officials,  knowing  the 
conditions,  thought  them  to  constitute  a  defect, 
is  not  material.  Knowledge  of  the  defective  con- 
ditions is  the  only  consideration  in  this  regard.5 

143  Mass.  296  (1887).  Hanscom  v.  Boston,  141  Mass.  242  (1886). 
Welsh  v.  Amesbury,  170  Mass.  437  (1898). 

1  Brooks  v.  Somerville,  106  Mass.  271  (1871). 

2  Donaldson  v.  Boston,   16  Gray,  508,  511    (1860).     Howe  v. 
Lowell,  101    Mass.  99  (1869).     Crosby  v.  Boston,  118   Mass.  71 
(1875).    Blake  v.  Lowell,  143  Mass.  296  (1887).    Hinckley  v.  Somer- 
set, 145  Mass.  326,  337  (1887). 

3  Donaldson  v.  Boston,  16  Gray,  508  (1860). 
*  Foster  v.  Boston,  127  Mass.  290  (1879). 

5  Hinckley  v.  Somerset,  145  Mass.  326,  336  (1887). 
Notice  of  a  cause  outside  of  a  highway  which  is  likely  to  pro- 
duce at  some  time  a  defect  within  that  highway,  is  not  notice  of 


THE   LIABILITY   OP   MUNICIPAL   CORPORATIONS.      53 

§  46.  Constructive  Notice.  —  If  there  is  no  evi- 
dence of  actual  knowledge  of  the  defective  con- 
dition of  the  highway  on  the  part  of  the  officers 
of  the  town,  the  plaintiff  may  still  maintain  his 
action  upon  proof  that  they  might  have  had  such 
knowledge  by  the  exercise  of  reasonable  care  and 
diligence.  Any  facts  relating  to  the  length  of 
time  prior  to  the  accident  during  which  the  defect 
had  existed,  and  to  the  position  and  publicity  of 
the  place  where  it  was  located,  —  in  short,  any 
circumstances  which  tend  to  show  its  notoriety, 
—  are  material  upon  this  issue.1 

Evidence  as  to  causes  that  may  be  known  to  be 
in  operation  in,  or  near  to,  the  highway,  which  are 
likely  to  produce  a  defect  therein,  may  also  be 
important,  since  in  such  a  case  greater  diligence 
may  be  required  of  the  town  officials  than  under 
other  conditions.  "  It  is  reasonable  that  the  of- 
ficers should  keep  a  more  watchful  eye  over  such 
a  way  in  order  to  guard  against  danger.  When, 

the  defect  itself,  if  one  results  therefrom.  Billings  v.  Worcester, 
102  Mass.  329  (1869). 

1  Bourget  v.  Cambridge,  159  Mass.  388  (1893).  Whitney  fc. 
Lowell,  151  Mass.  212  (1890).  Noyes  v.  Gardner,  147  Mass.  505 
(1888).  Fortin  v.  Easthampton,  145  Mass.  196  (1887).  Purple  v. 
Greenfield,  138  Mass,  1,  7,  point  2  (1884).  Donaldson  v.  Boston, 
16  Gray,  508  (1860).  Reed  v.  Northfield,  13  Pick.  94  (1832). 
And  see  also  Chase  v.  Lowell,  151  Mass.  422  (1890). 

As  to  the  effect  of  this  clause  where  the  alleged  defect  is  a 
loose  coal-hole  cover,  see  McGaffigan  v.  Boston,  149  Mass.  289 
(1889).  Hanscom  v.  Boston,  141  Mass.  242  (1886).  Harriman 
v.  Boston,  114  Mass.  241  (1873).  Welsh  v.  Amesbury,  170  Mass. 
437,  440  (1898). 


54  STATUTORY   TOETS   IN   MASSACHUSETTS. 

therefore,  a  defect  is  produced  by  some  known,  per- 
manent cause  which  would  naturally  create  the  de- 
fect, the  existence  of  such  cause  may  properly  be 
considered  by  the  jury  in  determining  whether  the 
officers  of  the  town  or  city  might  have  had  notice 
of  the  defect  by  the  exercise  of  proper  care  and 
diligence."  *  This  rule,  however,  is  limited  in 
its  application  to  cases  where  the  danger  to  be 
guarded  against  is  reasonably  immanent  in  point 
of  time.  If,  therefore,  the  known  causes  are  likely 
to  produce  a  defect  in  the  highway  only  at  some 
time  in  the  remote  future,  the  town  cannot  be  held 
responsible  on  the  ground  of  implied  notice.2 

SECTION  19.8  A  person  so  injured  shall  within  ten 
days  thereafter,  if  such  defect  or  want  of  repair  is 
caused  by  or  consists  of  snow  or  ice,  or  both,  whether 
wholly  or  in  part,  and  in  all  other  cases  4  within  thirty 
days  thereafter,  give  to  the  county,  town,  place  or 
persons  by  law  obliged  to  keep  said  highway,  town 
way,  causeway,  or  bridge  in  repair,  notice  of  the  time, 
place,  and  cause  of  the  said  injury  or  damage;  and 
if  the  said  county,  town,  place,  or  persons  do  not  pay 
the  amount  thereof,  he  may  within  two  years  after 
the  date  of  said  injury  or  damage  bring  an  action  of 

1  Chief  Justice   Morton  in  Olson  v.  Worcester,  142  Mass.  536 
(1886).     Posti>.  Boston,  141  Mass.  189  (1886),  accord. 

2  Rochefort  v.  Attleborough,  154  Mass.  140  (1891).     Stoddard 
w.  Winchester,  154  Mass.  149  (1891);  s.  c.  157  Mass.  567  (1893). 
See  also  Fleming  v.  Springfield,  154  Mass.  520  (1891). 

3  As  amended  by  St.  1888,  ch.  114. 

4  Provision  added  by  St.  1894,  ch.  422,  s.  1. 


THE   LIABILITY   OF   MUNICIPAL   CORPORATIONS.      55 

tort  against  said  county,  town,  place,  or  persons  to 
recover  the  same.  But  no  notice  given  under  the 
provisions  of  this  section  shall  be  deemed  to  be  invalid 
or  insufficient  solely  by  reason  of  any  inaccuracy  in 
stating  the  time,  place,  or  cause  of  the  injury :  pro- 
vided, that  it  is  shown  that  there  was  no  intention  to 
mislead,  and  that  the  party  entitled  to  notice  was  not 
in  fact  misled  thereby.1 

>  STATUTE  1894,  CHAPTER  389.  In  an  action  to  re- 
cover for  bodily  injury,  or  damage  to  a  person  in  his 
property,  hereafter  sustained,  no  defendant  shall  avail 
himself  in  defence  of  such  action  of  any  omission  to 
state  in  the  written  notice  now  required  by  law,  the 
time,  place  or  cause  of  the  injury  or  damage,  unless, 
within  five  days  after  the  receipt  of  a  written  notice 
given  by  the  person  entitled  to  give  the  same  within 
the  time  now  required  by  law,  which  notice  shall  refer 
to  the  injury  or  injuries  sustained  and  claim  damages 
or  payment  therefor,  the  person  or  corporation  re- 
ceiving such  notice,  or  some  one  in  his  or  its  behalf, 
shall  give  to  the  person  injured,  or  to  the  person  giving 
or  serving  such  notice  in  behalf  of  the  person  injured, 
or  to  the  executor  or  administrator  of  the  person  in- 
jured, a  notification  in  writing  that  the  notice  given  is 
not  in  compliance  with  the  law,  and  requesting  fosth- 
with  a  further  written  notice  which  shall  comply  with 
the  law.  And  if  the  person  legally  authorized  to  give 
such  notice  shall,  within  five  days  after  the  receipt 
of  such  notification  and  request  for  a  further  written 

1  This  last  sentence  was  first  added  by  St.  1882,  ch.  36. 


56  STATUTORY   TORTS   IN   MASSACHUSETTS. 

notice,  give  a  further  written  notice  complying  with 
the  law  as  to  the  time,  place  and  cause  of  the  injury 
or  damage;  such  notice  shall  be  of  the  same  legal 
effect  as  if  it  had  been  given  at  the  time  of  the  orig- 
inal notice,  and  shall  be  considered  as  a  part  thereof.1 

§  47.  The  Object  and  Effect  of  the  Section.  — 
The  provisions  of  this  and  the  following  section 
were  intended  to  enable  towns  to  investigate  their 
liability  in  each  case  where  an  injury  was  alleged 
to  have  been  sustained,  at  a  time  when  the  impor- 
tant facts  relating  to  the  condition  of  the  way  and 
to  the  circumstances  of  the  accident  were  easily 
accessible,  and  thus  to  protect  themselves  from 
actions  based  upon  fictitious  claims.2  The  giving 
of  the  notice  here  required  is  construed,  therefore, 
as  creating  a  strict  condition  precedent  to  the 
right  to  maintain  an  action  for  an  injury  upon 
the  highway  :  no  liability  under  the  statute  arises 
until  the  notice  is  given.3  So  strictly  is  this  con- 
struction applied  that  it  has  been  held  that  the 
town  itself  cannot,  if  it  would,  waive  compliance 
with  this  requirement.4 

1  The  provisions  of  this  statute,  it   may  be  observed,  require 
the  introduction  of  two  new  elements  into  the  notice,  —  that  it 
shall   refer  to  the   injury   sustained,  and    shall    claim   damages 
therefor. 

2  See  Whitman  r.  Groveland,  131  Mass.  553,  556  (1881). 
8  Kenady  v.  Lawrence,  128  Mass.  318  (1880). 

*  Gay  r.  Cambridge,  128  Mass.  387  (1880).  Madden  v.  Spring- 
field, 131  Mass.  441  (1881). 

These  provisions  as  to  notice  apply  to  infants  of  tender  years  as 
well  as  to  adults.  Madden  v.  Springfield,  131  Mass.  441  (1881). 


THE   LIABILITY   OF   MUNICIPAL   CORPORATIONS.      57 

4 '  TO  THE  COUNTY,  TOWN,  PLACE  OR  PERSONS  BY  LAW 
OBLIGED  TO  KEEP  SAID  HIGHWAY,  TOWN  WAY,  CAUSE- 
WAY, OR  BRIDGE  IN  REPAIR." 

§  48.  When  a  Notice  is  required.  —  The  notice 
for  which  provision  is  here  made  must  be  given  in 
all  cases  where  it  is  sought  to  enforce  a  liability 
for  an  injury  suffered  by  reason  of  a  failure  to  keep 
safe  and  convenient  for  travel  a  way  which  the 
defendant  was  by  law  obliged  to  repair.  Thus, 
railroad  corporations1  and  street-railway  com- 
panies,2 as  well  as  towns,  if  bound  by  law  to  repair 
a  highway,  are  entitled  to  this  notice  before  an 
action  for  damages  can  be  maintained  against  them 
under  this  statute.  And  it  follows  that  if  the 
defendant  was  not  obliged  by  law  to  repair  the  way 
where  the  accident  happened,  the  want  of  a  notice 
will  afford  him  no  defence.  Thus,  a  plaintiff  can 
maintain  an  action  against  an  abutter  for  an  in- 
jury caused  by  a  defect  in  his  coal-hole,  without 
first  giving  notice  of  the  time,  place,  and  cause  of 
his  injury.3  So  also  where  the  plaintiff  was  in- 
jured by  a  defect  in  a  sidewalk  which  had  been 
laid  out  by  the  defendant  upon  his  own  land  and 
paved  continuously  with  the  street  so  as  to 
apparently  form  a  part  thereof.* 

1  Mack  v.  Boston  &  Albany  Railroad,  164  Mass.  393  (1895). 
Dickie  i;.  Same,  131  Mass.  516  (1881). 

8  Dobbins  v.  West  End  Street  Railway,  168  Mass.  556  (1897). 
8  Stevenson  v.  Joy,  152  Mass.  45  (1890). 
*  Holmes  v.  Drew,  151  Mass.  578  (1890). 


58  STATUTORY  TORTS   IN   MASSACHUSETTS. 

"NOTICE  OF  THE  TIME,  PLACE,  AKD  CAUSE  OF  THE 
SAID  INJURY." 

§  49.  The  Sufficiency  of  the  Notice.  —  The  items 
of  time,  place,  and  cause  are  not  required  to  be 
stated  in  any  particular  form  of  words :  a  written 
communication  that  sets  them  forth  with  reason- 
able fulness,  and  claims  damages  for  the  injury,  so 
as  to  indicate  that  it  was  given  for  the  purpose  of 
fixing  the  injured  person's  right  of  action,  will 
ordinarily  satisfy  the  statutory  requirements.1  The 
minuteness  with  which  the  items  should  be  stated 
must  depend  very  largely  upon  the  circumstances 
of  each  particular  case.2  But  the  broad  general 
rule  is  that  the  notice  must  be  so  reasonably  specific 
as  to  time,  place,  and  cause  as  to  be  of  substantial 
assistance  to  the  officers  of  the  town  in  investi- 
gating the  case.3 

The  question  of  the  sufficiency  of  a  notice  is  one 
of  law,  to  be  determined  by  the  court  from  an  in- 
spection of  the  whole  communication.4  The  rules 
of  construction,  however,  are  not  to  be  applied  to 
it  with  technical  strictness.5 

1  Harris  v.  Newbury,  128  Mass.  321,  325    (1880).     Kenady  v. 
Lawrence,  128  Mass.   318   (1880).     McNulty  v.  Cambridge,    130 
Mass.  275  (1881). 

2  Larkin  v.  Boston,  128  Mass.  521,  522    (1880).     Donnelly  v. 
Tall  River,  132  Mass.  299,  301  (1882). 

8  Dalton  v.  Salem,  136  Mass.  278  (1884).  Canterbury  v.  Bos- 
ton, 141  Mass.  215  (1886). 

4  Shea  v.  Lowell,  132  Mass.  187  (1882).  Lyman  v.  Hampshire, 
138  Mass.  74  (1884). 

6  SeeSpellman  v.  Chicopee,  131  Mass.  443  (1881). 

The  fact  that  the  town  clerk,  upon  whom  a  notice  was  served, 


THE  LIABILITY   OF   MUNICIPAL   CORPORATIONS.      59 

§  50.  The  Statement  of  the  Time.  —  As  a  general 
rule  it  is  sufficient  to  state  in  the  notice  simply  the 
day  upon  which  the  injury  was  sustained.  The 
hour  of  the  day  need  not  be  set  out,  unless  it 
appears  that  something  depends  upon  the  exact 
time  of  the  accident.1 

§  51.  The  Statement  of  the  Place.  —  The  place 
where  the  accident  happened  should  be  described 
with  sufficient  particularity  to  make  it  possible  to 
locate,  with  reasonable  certainty,  the  precise  spot.2 
This  rule  plainly  is  not  satisfied  by  simply  naming 
the  street  upon  which  the  injury  was  received, 
especially  if  it  be  a  street  of  any  considerable 
length.3  But  the  other  statements  contained  in  a 
notice  may  be  considered  in  aid  of  the  description 
of  the  place,  so  that  it  is  enough  if  the  correct 
location  of  the  defect  can  be  determined  from  the 
communication  taken  as  a  whole.4 

did  not  object  to  its  insufficiency  was  not,  prior  to  1894,  a  waiver 
by  the  town  of  such  insufficiency,  as  a  matter  of  general  law.  Shea 
v.  Lowell,  132  Mass.  187  (1882).  See  St.  1894,  ch.  389,  ante.  Any 
deficiencies  in  the  written  notice  cannot  be  supplied  by  oral  state- 
ments made  to  the  officers  of  the  town.  Roberts  v.  Douglas,  140 
Mass.  129  (1885). 

1  Donnelly  v.  Fall  River,  132  Mass.  299  (1882).    Welch  v.  Gard- 
ner, 133  Mass.  529  (1882).     Cronin  v.  Boston,  135  Mass.  110(1883). 

2  Lowe  v.  Clinton,  133  Mass.  526   (1882).     McCabe  v.   Cam- 
bridge, 134  Mass.  484  (1883).     Shallow  v.  Salem,  136  Mass.  136 
(1883).     Lyman  v.  Hampshire,  138  Mass.  74  (1884).     Hughes  v. 
Lawrence,  160  Mass.  474  (1894). 

3  Larkin  v.  Boston,  128  Mass.   521  (1880).     Donnelly  v.  Fall 
River,  132  Mass.  299  (1882). 

4  Lowe  i«.  Clinton,  133  Mass.  526  (1882).     Sargent  v.  Lynn,  138 
Mass.  599  (1884). 


60  STATUTORY   TORTS   IN   MASSACHUSETTS. 

§  52.  The  Statement  of  the  Cause.  —  The  designa- 
tion of  that  state  of  facts  which  constitutes  the 
alleged  defect  by  reason  of  which  the  accident 
happened  is  a  proper  and  sufficient  statement  of 
the  cause  of  the  injury  within  the  meaning  of  this 
provision  of  the  statute.1  It  is  not  enough,  there- 
fore, merely  to  say  that  the  plaintiff  was  injured 
"  by  reason  of  a  defect  in  the  highway,"  —  that  is 
not  a  statement  of  the  cause  of  the  particular  in- 
jury, but  a  statement  of  "  the  general  ground  upon 
which  a  city  in  every  case  is  liable  for  injuries  sus- 
tained iipon  the  highway."  2  So  also  the  descrip- 
tion of  the  cause  simply  as  an  obstruction  in  the 
highway,  without  stating  its  nature,  is  not  suffi- 
cient.3 But,  having  properly  described  the  defect, 
it  is  not  necessary  that  the  notice  should  go  further 
and  state  the  cause  of  that  defect,4  nor  even  allege 

1  Taylor  ?;.  Woburn,  130  Mass.  494  (1881).     Aston  v.  Newton, 
134  Mass.  507  (1883).     Grogan  v.  Worcester,  140  Mass.  227  (1885). 
Davis  r.  Charlton,  140  Mass.  422  (1886).     Young  v.  Douglas,  157 
Mass.  383  (1892). 

As  to  the  interpretation  of  the  words  "  the  improper  grading  of 
said  road  "  as  a  statement  of  the  cause,  see  Spoouer  v.  Freetown, 
139  Mass.  235  (1885). 

2  Noonan  v.  Lawrence,  130  Mass.  161  (1881).    McNulty  v.  Cam- 
bridge, 130  Mass.  275  (1881).    Miles  v.  Lynn,  130  Mass.  398  (1881). 
Madden  v.  Springfield,  131   Mass.  441   (1881).     Dalton  v.  Salem, 
131  Mass.  551   (1881).     And  see  also  Bailey  v.  Everett,  132  Mass. 
441  (1882). 

8  Roberts  v.  Douglas,  140  Mass.  129  (1885). 

4  Whitman  v.  Groveland,  131  Mass.  553,  555  (1881). 

A  .variance  between  the  cause  as  stated  in  the  notice  and  as 
proved  at  the  trial  is  fatal,  unless  it  also  be  shown  that  there  was 
no  intention  to  mislead,  and  that  the  town  was  not  in  fact  misled, 


THE   LIABILITY   OF   MUNICIPAL   CORPORATIONS.      61 

that  the  condition  of  things  described  constituted 
a  defect.1 

' '  IF  THE  SAID  COUNTY,  TOWN,  PLACE,  OR  PERSONS 
DO  NOT  PAY  THE  AMOUNT  THEREOF,  HE  MAY  WITHIN  TWO 
YEARS  AFTER  THE  DATE  OF  SAID  INJURY  OR  DAMAGE 
BRING  AN  ACTION  OF  TORT  AGAINST  SAID  COUNTY,  TOWN, 
PLACE,  OR  PERSONS  TO  RECOVER  THE  SAME." 

§  53.  The  Right  of  Action  not  affected  by  this 
Provision.  —  It  is  not  the  purpose  of  this  clause  to 
require  any  delay  in  beginning  an  action,  after  the 
notice  has  been  given.  This  is  true  even  though 
sufficient  time  is  not  allowed  the  town  in  which 
duly  to  call  a  town  meeting,  and  thus  legally  to 
appropriate  the  money  with  which  to  pay  the 
amount  of  the  damage  —  the  only  way  whereby  it 
can  legally  avail  itself  of  the  privilege  of  a  settle- 
ment which  this  provision  would  seem  to  hold  out. 
As  soon,  therefore,  as  the  notice  is  given,  the  right 
of  action  is  complete,  and  may  be  immediately 
enforced.2 

"  BUT  NO  NOTICE  GIVEN  UNDER  THE  PROVISIONS  OF 
THIS  SECTION  SHALL  BE  DEEMED  TO  BE  INVALID  OR 
INSUFFICIENT  SOLELY  BY  REASON  OF  ANY  INACCURACY 
IN  STATING  THE  TIME,  PLACE,  OR  CAUSE  OF  THE  IN- 
JURY :  PROVIDED,  THAT  IT  IS  SHOWN  THAT  THERE  WAS 
NO  INTENTION  TO  MISLEAD,  AND  THAT  THE  PARTY  EN- 
TITLED TO  NOTICE  WAS  NOT  IN  FACT  MISLED  THEREBY." 

by  the  statement  in  the  notice.    Bowes  v.  Boston,  1 55  Mass.  344, 
348  (1892).     McDougall  v.  Boston,  134  Mass.  149  (1883). 

1  Savory  v.  Haverhill,  132  Mass.  324,  326  (1882). 

2  Whitman  v.  Groveland,  131  Mass.  553,  556  (1881). 


62  STATUTORY  TORTS  IN   MASSACHUSETTS. 

§  54.  The  Effect  of  the  Provision.  —  This  clause 
does  not  relieve  the  plaintiff  from  the  necessity  of 
giving  a  notice,  nor  from  the  necessity  of  stat- 
ing therein  the  particulars  of  time,  place,  and 
cause.  Its  only  effect,  then,  is  to  relieve  from  an 
inaccuracy  in  the  statement  of  any  of  those  par- 
ticulars, when  it  appears  that  such  inaccuracy  was 
not  intentional,  and  that  the  town  was  not  misled 
thereby.1 

The  word  "  inaccuracy  "  as  here  used  covers  as 
well  insufficiency  as  actual  mistake.2  Thus,  if  the 
notice  fails  fully  to  describe  the  particular  defect 
relied  on,  but  there  is  evidence  tending  to  show 
that  the  authorities  of  the  town  went  to  the  spot 
indicated  and  found  the  actual  defect  that  caused 
the  injury,  it  would  warrant  a  finding  that  the 
town  was  not  in  fact  misled,  and  so  cure  the  defect 
in  the  notice.3 

SECTION  20.  No  person  shall  recover  from  a  town, 
city,  county,  or  place,  in  any  such  action,  a  greater 
sum  for  damages  or  injury  than  one-fifth  of  one  per 

1  Gardner  v.  Weymouth,  155  Mass.  595  (1892).     See  also  Car- 
berry  v.  Sharon,  1.66  Mass.  32  (1896). 

2  Fuller  v.  Hyde  Park,  162  Mass.  51,  54  (1894).     Gardner  v. 
Weymouth,  155  Mass.  595,  597  (1892),  semble. 

8  Liffin  v.  Beverly,  145  Mass.  549  (1888). 

For  cases  where  the  inaccuracy  was  in  the  description  of  the 
place  of  the  accident,  see  Veno  v.  Waltham,  158  Mass.  279  (1893). 
Conners  v.  Lowell,  158  Mass.  336  (1893). 

As  bearing  upon  the  question  whether  or  not  the  town  was  mis- 
led, evidence  of  conversations  in  regard  to  the  time,  place,  and 
cause  of  the  injury,  had  with  officers  of  the  town,  is  admissible. 
Fortin  v.  Easthampton,  142  Mass.  486  (1886). 


THE   LIABILITY   OF   MUNICIPAL   CORPORATIONS.      63 

cent  of'  the  state  valuation  of  such  town,  city,  county, 
or  place  last  preceding  the  commencement  of  the  ac- 
tion, nor  a  greater  sum  than  four  thousand  dollars. 

§  55.  The  Burden  of  Proof  under  this  Section. 
—  These  provisions  of  the  statute  which  in  effect 
limit  the  liability  are,  it  may  be  observed,  made  a 
separate  section,  entirely  disconnected  from  those 
that  impose  the  liability.  Following  the  general 
rule  of  construction  in  such  cases  l  it  is  held  that 
a  plaintiff  is  not  bound,  in  order  to  maintain  his 
action,  to  offer  evidence  of  the  valuation  of  the 
defendant  town  ;  the  burden  of  proving  a  valua- 
tion that  would  cut  down  the  liability  below  four 
thousand  dollars  rests  upon  the  defendant.2  And 
it  has  also  been  held  that  it  was  fair  for  the  jury 
to  assume,  in  the  absence  of  evidence  upon  the 
point,  that  one-fifth  of  one  per  cent  of  the  State 
valuation  would  amount  to  more  than  four  thou- 
sand dollars.2 

SECTION  21.  The  notice  required  by  section  nine- 
teen shall  be  in  writing,  signed  by  the  person  injured 
or  by  some  one  in  his  behalf,  and  may  be  given,  in  the 
case  of  a  county,  to  one  of  the  county  commissioners 
or  to  the  county  treasurer ;  in  the  case  of  a  city,  to 
the  mayor,  the  city  clerk,  or  the  treasurer ;  and  in  the 
case  of  a  town,  to  one  of  the  selectmen  or  to  the  town 
treasurer  or  clerk ;  but  if  from  physical  or  mental  in- 
capacity it  is  impossible  for  the  person  injured  to  give 

1  See  Comm.  ».  Hart,  11  Cash.  130,  134  (1853). 

2  Harris  v.  Quincy,  171  Mass.  472  (1898). 


64  STATUTORY  TORTS   IN   MASSACHUSETTS. 

the  notice  within  the  time  provided  in  said  section,  he 
may  give  the  same  within  ten  days  after  such  in- 
capacity is  removed,  and  in  case  of  his  death  without 
having  given  the  notice,  and  without  having  been  for 
ten  days  at  any  time  after  his  injury  of  sufficient 
capacity  to  give  the  notice,  his  executor  or  adminis- 
trator may  give  such  notice  within  thirty  days  after 
his  appointment. 

§  56.  The  Notice  must  be  wholly  in  Writing. —  A 
plaintiff  cannot  supply  the  deficiencies  of  his  written 
notice  by  evidence  showing  that  the  officers  of  the 
town  had  oral  information  from  himself,  or  from 
any  other  source,  which  pointed  out  more  fully  the 
time,  place,  and  cause  of  the  injury.  The  notice 
cannot  be  partly  oral  and  partly  written :  it  must 
be  wholly  in  writing.1  Evidence  of  conversations 
in  regard  to  the  time,  place,  and  cause  of  an  ac- 
cident, had  with  officials  of  a  town,  is,  however, 
admissible  as  bearing  upon  the  question  whether  or 
not  the  town  was  misled  by  any  inaccuracy  in  the 
written  notice.2 

§  57.  By  •whom  the  Notice  may  be  signed.  —  As 
expressly  provided  in  this  section,  the  notice  may 
be  signed  either  by  the  injured  person,  or  by  some 
one  in  his  behalf.  But  when  the  signing  is  by  a 
third  person,  it  should  appear  that  it  was  done  in 
behalf  of  the  person  injured.3  That  it  was  so  done 

1  Dalton  v.  Salem,  139  Mass.  91   (1885).     Shea  v.  Lowell,  132 
Mass.  187  (1882). 

2  Fortin  v.  Easthampton,  142  Mass.  486  (1886). 

8  Kenady  v.  Lawrence,  128  Mass.  318  (1880).  Roach  v. 
Somerville,  131  Mass.  189  (1881). 


THE   LIABILITY   OF  MUNICIPAL   CORPORATIONS.      65 

need  not,  however, be  stated  in  terms  ;  it  is  enough 
if  the  fact  can  be  gathered  from  the  whole  notice.1 
Thus  where  the  husband  of  an  injured  woman 
signed  his  own  name  alone  to  the  notice,  it  was 
held  that,  taking  into  consideration  the  relation  of 
the  parties  and  the  presumption  that  the  husband 
knew  that  the  town  was  not  responsible  to  him,  but 
only  to  his  wife,  the  fact  that  it  was  signed  on  be- 
half of  the  injured  wife  sufficiently  appeared.2 

§  58.  The  Service  of  the  Notice.  —  The  notice 
may  be  served  upon  the  town  by  any  person,  by 
delivering  the  original  to  a  proper  official,  or  it 
may  be  served  by  a  public  officer,  by  an  attested 
copy.3 

If  the  notice  is  delivered  to  one  of  the  officials 
indicated  in  this  section,  the  service  upon  the  town 
is  sufficient.  Thus,  if  it  is  given  to  one  of  the 
selectmen  of  a  town,  that  is  a  sufficient  service 
upon  the  town,  although  the  selectman  fails  to 
communicate  it  to  the  board  of  selectmen.4  So 

1  Carberry  v.  Sharon,  166   Mass.  32   (1896).      Nash  v.  South 
Hadley,  145  Mass.  105,  107  (1887).    Taylor  v.  Wobura,  130  Mass. 
494  (1881). 

2  Higgins  v.  North  Andover,  168  Mass.  251  (1897). 

For  cases  where  the  injured  person  died  within  ten  days  after 
the  accident,  and  the  notice  relied  on  at  the  trial  was  given  within 
the  thirty  days  after  the  injury  by  a  person  who  afterwards 
became  the  legal  representative  of  the  deceased,  see  Taylor  v. 
Woburn,  130  Mass.  494,497  (1881);  and  Nash  v.  South  Hadley, 
145  Mass.  105  (1887). 

Whitney  v.  Lowell,  151  Mass.  212  (1890).     Tub.  Sts.  ch.  27, 
8.  117. 

«  Taylor  v.  Woburn,  130  Mass.  494  (1881). 
5 


66  STATUTORY  TORTS  IN   MASSACHUSETTS. 

also  if  the  notice  is  delivered  in  the  city  clerk's 
office,  to  the  assistant  clerk,  in  the  absence  of  the 
clerk,  it  is  duly  served.1 

"  BUT  IF  FROM  PHYSICAL  OR  MENTAL  INCAPACITY  IT 
IS  IMPOSSIBLE  FOR  THE  PERSON  INJURED  TO  GIVE  THE 
NOTICE  WITHIN  THE  TIME  PROVIDED  IN  SAID  SECTION,  HE 
MAY  GIVE  THE  SAME  WITHIN  TEN  DAYS  AFTER  SUCH  IN- 
CAPACITY IS  REMOVED. 

§  59.  Incapacity  to  give  the  Notice.  —  When  the 
notice  is  not  given  within  thirty  days  after  the 
accident,  the  burden  rests  upon  the  plaintiff  to 
establish  the  fact  that  the  omission  was  due  to 
some  physical  or  mental  incapacity  which  made  it 
impossible  for  him  to  give  it.2  This  burden  is  not 
sustained  by  evidence  which  shows  simply  that 
the  plaintiff  was  not  able,  by  reason  of  physical 
inability,  to  go  in  person  and  give  the  notice.  It 
must  be  shown,  in  order  that  advantage  may  be 
taken  of  this  provision,  that  there  was  such  physi- 
cal or  mental  incapacity  as  to  make  it  impossible 
for  him,  by  any  ordinary  means  at'  his  command, 
to  procure  the.  notice  to  be  given.8 

1  McCabe  v.  Cambridge,  134  Mass.  484  (1883).     And  see  upon 
the  same  subject,  Wormwood  v.  Waltham,  144  Mass.  184  (1887). 

If  the  notice  is  addressed  to  the  proper  official  of  the  town,  in 
his  official  capacity,  it  is  a  good  notice  to  the  town.  Leonard  y. 
Holyoke,  138  Mass.  78  (1884).  Lyman  v.  Hampshire,  138  Mass. 
74  (1884). 

2  Mitchell  v.  Worcester,  129  Mass.  525  (1880).    Lyons  v.  Cam- 
bridge, 132  Mass.  534  (1882). 

8  Sannders  r.  Boston,  167  Mass.  595  (1897).  Barclay  v.  Boston, 
167  Mass.  596  (1897).  May  r.  Boston,  150  Mass.  517  (1890). 


THE   LIABILITY   OF   MUNICIPAL   CORPORATIONS.      67 

It  is  thus  a  question  for  the  jury  to  determine, 
under  proper  instructions,  whether  or  not  the 
plaintiff  was  actually  incapacitated,  physically  or 
mentally,  from  giving  the  notice  within  the  pre- 
scribed number  of  days.1 

"  AND  IN  CASE  OF  HIS  DEATH  WITHOUT  HAVING  GIVEN 
THE  NOTICE,  AND  WITHOUT  HAVING  BEEN  FOR  TEN  DATS 
AT  ANY  TIME  AFTER  HIS  INJURY  OF  SUFFICIENT  CAPACITY 
TO  GIVE  THE  NOTICE,  HIS  EXECUTOR  OR  ADMINISTRATOR 
MAY  GIVE  SUCH  NOTICE." 

§  60.  The  Construction  of  the  Provision.  —  In 
this  clause  the  legislature  has  provided  by  whom, 
and  under  what  circumstances,  the  notice  shall  be 
given  in  case  the  injured  person  has  died  without 
giving  it,  and  these  provisions,  it  is  held,  must  be 
strictly  followed.  Therefore,  where  the  injured 
person  lived  for  more  than  ten  days  in  such  a 
condition  that  it  was  possible  for  him  to  give  the 
notice  but  he  neglected  to  do  it,  and  the  notice 
relied  on  at  the  trial  was  given  within  thirty  days 
after  his  decease  by  his  son,  who  was  afterward 
appointed  executor  of  his  estate,  it  was  held  that 
it  was  not  a  sufficient  notice  within  the  meaning 
of  this  provision.2 

SECTION  22.    If.  before  the  entry  of  an  action  under 

Lyons  v.  Cambridge,  132  Mass.  534  (1882).    Mitchell  v.  Worcester, 
129  Mass.  525  (1880). 

1  Welch  v.  Gardner,  133  Mass.  529  (1882). 

2  Nash  v.   South   Hadley,  145   Mass.   105   (1887).    But    held 
differently  under  an  earlier  statute,  see  Taylor  v.  Woburn,  130 
Mass.  494  (1881). 


68  STATUTORY  TORTS  IN  MASSACHUSETTS. 

section  eighteen,  the  defendant  tenders  to  the  plain- 
tiff the  amount  which  he  would  be  entitled  to  recover, 
together  with  all  legal  costs,  and  the  plaintiff  does 
not  accept  the  same,  and  does  not  recover  upon  the 
trial  more  than  the  sum  so  tendered,  the  defendant 
shall  recover  his  costs. 

§  61.  The  Effect  of  a  Tender.  —  Both  the  mean- 
ing of  the  word  "  tender  "  as  here  used,  and  the  effect 
of  making  one  under  this  section,  are  the  same  as 
at  common  law.  As  was  said  by  Mr.  Justice  Bige- 
low  in  Bacon  v.  Charlton : 1  "In  this  statute,  the 
word ' tender'  is  used  without  anything  to  change  or 
qualify  its  strict  technical  signification.  We  are 
therefore  to  suppose  that  the  legislature  intended 
so  to  use  it,  and  to  annex  to  it  all  the  legal  in- 
cidents and  consequences,  which  properly  attach 
to  the  word  in  legal  proceedings.  It  follows,  that 
when  a  party  avails  himself  of  the  right  to  tender 
to  the  party  injured  a  sum  for  damages  under  this 
statute,  and  thus  seeks  to  secure  the  benefits 
conferred  by  it,  he  subjects  himself  to  all  the  con- 
sequences which  the  common  law  attaches  to  the 
act."  It  was  held,  therefore,  in  that  case  that 
"  where  money  is  tendered  and  paid  into  court,  upon 
a  declaration  which  contains  only  one  cause  of 
action,  specifically  set  forth,  it  operates  as  a  con- 
clusive admission  of  every  fact,  which  the  plaintiff 
would  be  bound  to  prove  in  order  to  maintain  his 
action;  leaving  open  only  the  question  whether 

i  7  Cash.  581  (1851). 


THE  LIABILITY   OF  MUNICIPAL   CORPORATIONS.      69 

he  is  entitled  to  recover  any  greater  amount  of 
damages." 

Evidence  —  Upon  the  issue  as  to  the  existence  of  a 
defect  or  want  of  repair  in  or  upon  the  highway. 

§  62.  The  Acts  of  other  Persons.  —  The  experi- 
ences of  other  persons  in  passing  the  alleged  de- 
fective spot,  had  prior  to  the  plaintiff's  injury,  are 
generally  treated  as  collateral  facts  which  furnish 
no  legal  presumption  as  to  the  principal  fact  in 
dispute,  and  are,  therefore,  not  admissible  in  evi- 
dence. Thus,  it  is  not  competent  for  the  plaintiff 
to  show  that  another  person,  before  the  date  of  his 
own  injury,  received  a  similar  injury  at  or  near  the 
same  place,  without  negligence  on  his  part.1  Nor, 
on  the  other  hand,  can  the  town  show  that  other 
persons  than  the  plaintiff  had  passed  and  repassed 
the  place  alleged  to  be  defective  in  safety,2  or  had 
driven  over  it  with  considerable  speed  without  in- 
jury ; 3  or  that  no  accident  had  previously  happened 
at  the  place  of  the  alleged  defect.*  And  so,  where 
the  defect  relied  on  was  the  insufficient  width  of 
the  highway,  it  was  held  incompetent  for  the 
plaintiff  to  show  that  other  carriages  had  been 
unable  to  pass  at  the  place  of  the  accident,5  or  for 

1  Collins  v.  Dorchester,  6  Cush.  396  (1850).    Blair  v.  I'elham, 
118  Mass.  420,  422  (1875). 

2  Aldrich  v.  Pelham,  1  Gray,  510  (1854).    Kidder  v.  Dunstable, 
11  Gray,  342  (1858). 

»  Schoonmaker  v.  Wilhraham,  110  Mass.  134  (1872). 
«  Marvin  v.  New  Bedford,  158  Mass.  464  (1893). 
*  Merrill  v.  Bradford,  110  Mass.  505  (1872). 


70  STATUTORY  TORTS   IN   MASSACHUSETTS. 

the  town  to  show  that  other  vehicles  had  met 
there  and  passed  without  difficulty.1  And  this 
rule  of  evidence  is  not  altered  by  facts  which  show 
that  the  condition  of  the  highway  had  all  the 
time  remained  unchanged. 2 

§  63.  The  Existence  of  Similar  Defects  in  other 
Places.  —  The  fact  that  like  defects  existed  in 
other  towns  can  afford  a  defendant  no  excuse  for 
its  own  neglect  of  duty.  It  is  not  competent, 
therefore,  for  a  town  to  prove  that  the  highway 
where  the  accident  happened  was  in  the  usual 
condition  of  other  country  roads,3  or  that  its  side- 
walks were  constructed  in  the  same  way  as  the 
sidewalks  in  other  towns,4  or  that  places  of  the 
same  character  had  existed  for  a  long  time  in 
the  streets  in  other  parts  of  the  town.5 

§  64.  The  State  of  the  Highway  at  other  Timea. 
—  Evidence  of  the  condition  of  the  highway  at  a 
time  prior  to,  or  subsequent  to,  the  accident  in 
question  is  admissible,  provided  it  is  so  near  in 
point  of  time,  or  is  accompanied  by  such  further 

1  Aldrich  v.  Pelham,  1  Gray,  510  (1854). 

2  Merrill  v.  Bradford,  110  Mass.  505  (1872).    Aldrich  v.  Pel- 
ham,  1  Gray,  510  (1854). 

a  Kidder  v.  Dunstable,  11  Gray,  342  (1858). 

4  George  v.  Haverhill,  110  Mass.  506,  512  (1872).  Marvin  v. 
New  Bedford,  158  Mass.  464  (1893). 

6  Bacon  v.  Boston,  3  Cush.  174,  181  (1849). 

So  evidence  that  in  other  towns  the  portions  of  the  highway 
between  the  carriage-way  and  the  sidewalk  were  not  deemed  to  be 
portions  of  the  highway  which  were  to  be  wrought  for  travel  and 
kept  in  repair  for  the  use  of  foot  passengers,  is  not  admissible. 
Raymond  v.  Lowell,  6  Cush.  524  (1850). 


THE   LIABILITY  OF   MUNICIPAL   CORPORATIONS.      71 

facts,  as  to  furnish  a  presumption  that  the  con- 
dition has  not  changed  meanwhile.1  Thus,  where 
the  accident  happened  on  Monday  morning,  evi- 
dence of  the  condition  of  the  highway  at  the  point 
in  question  on  the  previous  Saturday  night  was 
admitted.2  And  so  evidence  of  the  width  of  the 
highway  at  the  place  of  the  accident  nine  months 
after  the  injury  was  admitted,  together  with  evi- 
dence showing  that  the  width  had  remained  un- 
changed dnring  that  time.3  How  far  either  side 
of  the  day  of  the  accident  the  limit  shall  extend 
is  for  the  court,  in  the  exercise  of  a  reasonable 
discretion,  to  determine.4 

§  65.  Admissions.  —  It  has  been  held  that  it  is 
not  competent  for  the  plaintiff  to  put  in  evidence, 
as  an  admission  on  the  part  of  the  town  that  the 
highway  in  question  was  defective,  the  report  of 
certain  committees  of  the  town  in  relation  to  the 
condition  of  the  highway,  and  the  votes  of  the  in- 

1  Berrenberg  v.  Boston,  137  Mass.  231    (1884).     Woodcock  v. 
Worcester,  138  Mass.  268  (1885).     Neal  v.  Boston,  160  Mass.  518, 
522  (1894),  point  3. 

2  Sheren  v.  Lowell,  104  Mass.  24  (1870).    And  see  Daniels  v. 
Lowell,  139  Mass.  56  (1885). 

8  Brooks  v.  Petersham,  16  Gray,  181  (1860).  See  also  George 
v.  Haverhill,  110  Mass.  506  (1872). 

As  to  evidence  of  the  habitual  condition  of  the  place  where 
the  accident  happened,  see  Berrenberg  v.  Boston,  137  Mass.  231 
(1884).  Neal  v.  Boston,  160  Mass.  518  (1894). 

Where  the  injury  was  occasioned  by  an  obstruction  in  the 
highway,  evidence  that  it  was  in  the  road  on  the  day  before  the 
accident,  but  had  been  removed  at  night,  was  held  not  to  be  ad- 
missible. Donaldson  v.  Boston,  16  Gray,  508  (1860). 

*  Xeal  v.  Boston,  160  Mass.  518,  522  (1894),  point  3. 


72  STATUTORY  TORTS   IN   MASSACHUSETTS. 

habitants  thereon.1  Nor,  again,  evidence  that  two 
weeks  after  the  accident  happened  the  road  com- 
missioner of  the  town  repaired  the  place  alleged 
to  be  defective,  there  being  nothing  to  show  that 
the  town  had  voted  to  make  the  repairs,  or  had 
ratified  the  act  of  the  commissioner.2 

Evidence  —  Upoii  the  issue  whether  the  defect  might 
have  been  remedied,  or  the  injury  prevented  by  the 
exercise  of  reasonable  care  and  diligence  on  the  part 
of  the  town. 

§  66.  Similar  Conditions.  —  Evidence  which 
shows  that  a  defect  is  likely  to  occur  at  any  time 
from  the  operation  of  known  forces  is  competent 
upon  this  issue.  Thus  where  the  plaintiff  received 
his  injury  by  falling  into  a  cesspool,  the  cover  of 
which  had  floated  off  during  a  heavy  rain,  it  was 
held  that  evidence  showing  that  the  cover  had 

1  Collins  v.  Dorchester,  6  Gush.  396  (1850).     Wheeler  v.  Fram- 
ingham,  12  Cash.  287  (1853). 

The  report  of  a  committee  appointed  by  the  town  to  inquire  into 
the  facts  as  to  the  plaintiff's  injury,  and  the  votes  of  the  town  ac- 
cepting such  report,  are  not  admissible  as  admissions  of  liability 
where  the  reports  do  not  set  out  facts  showing  the  liability,  and 
where  the  votes  do  not  acknowledge  any  liability  or  provide  for 
any  settlement.  Dudley  v.  Weston,  1  Met.  477  (1840). 

2  Spooner  v.  Freetown,  139  Mass.  235  (1885). 

The  statements  of  a  surveyor  of  highways,  or  of  a  selectman,  as 
to  the  condition  of  the  highway,  are  not  admissions  binding  upon 
the  town.  Weeks  v.  Needham,  156  Mass.  289,  291  (1892). 

The  testimony  of  an  expert  upon  this  issue  is  not  admissible, 
since  it  relates  to  a  matter  on  which  the  common  experience  and 
observation  of  the  jury  qualifies  them  to  pass  when  the  actual  con- 
dition of  the  way  has  been  described  to  them.  Edwards  v.  Wor- 
cester, 172  Mass.  104  (1898). 


THE   LIABILITY   OF   MUNICIPAL   CORPORATIONS.      73 

been  off  several  times  during  the  year  before  the 
accident,  under  similar  circumstances,  was  ad- 
missible, and  would  warrant  a  finding  that  the 
town,  with  reasonable  care,  might  have  guarded 
against  the  injury.1 

§  67.  The  Expense  of  repairing  the  Highways.  — 
Since  towns  are  not  required  to  incur  unreasonable 
expense  in  order  to  keep  their  highways  safe  and 
convenient  for  travel,  the  element  of  expense  is 
important  as  bearing  upon  the  question  what  it  is 
reasonably  practicable  for  them  to  do.  Thus 
where  the  plaintiff  was  injured  by  being  over- 
turned by  a  snowdrift  in  the  highway,  it  was  held 
that  the  town  might  show  the  actual  cost  of  clear- 
ing the  roads  within  its  limits  after  the  storm 
which  caused  the  drift  in  question,  and  the  esti- 
mated cost  of  clearing  them  if  a  way  for  travel 
had  been  opened  along  the  middle  of  the  road  re- 
guardless  of  drifts,  instead  of  around  them  as  was 
done,  together  with  the  town  valuation  and  the 
amount  expended  each  year  for  the  repair  of  high- 
ways.2 Upon  the  same  ground,  facts  relating  to 
the  population  of  the  town,  to  the  assessed  valua- 
tion of  the  property  therein,  to  the  rate  of  taxation, 
to  the  amount  of  the  appropriation  for  highways, 
and  to  the  number  of  miles  of  public  ways  in  the 
town,  are  competent  evidence.3 

1  Post  v.  Boston,  141  Mass.  189  (1886). 

2  Kooney  v.  Randolph,  128  Mass.  580  (1880).     Hayes  v.  Cam- 
bridge, 136  Mass.  402  (1884)  ;  S.  C.  138  Mass.  461  (1885),  accord. 

3  Weeks  v.  Needham,  156  Mass.  289  (1892).    Sanders  v.  Palmer, 
154  Mass.  475  (1891). 


74  STATUTORY  TORTS   IN  MASSACHUSETTS. 

Evidence  —  Upon  the  issue  whether  the  town  had 
reasonable  notice  of  the  defect,  or  might  have  had 
notice  thereof  by  the  exercise  of  proper  care  and 
diligence. 

§  68.  The  Notoriety  of  the  Defect.  —  All  facts  and 
circumstances  which  tend  to  show  that  the  defect 
was  generally  known  —  such  as  the  public  char- 
acter of  the  way,  the  nature  of  the  defect  itself, 
the  time  during  which  it  had  existed,  and  the  like  * 
—  may  be  introduced  in  evidence  by  the  plaintiff 
upon  this  issue  of  notice.2  In  the  case  of  Chase  v. 
Lowell,  where  the  plaintiff  was  injured  by  a  defec- 
tive shade  tree,  it  was  held  that  he  might  put  in 
evidence  not  only  the  prominent  location  of  the 
tree  and  the  fact  that  a  large  number  of  citizens 
saw  and  noted  its  defective  condition,  but  as  well 
their  declarations  made  while  looking  at  it.8 

Such  evidence  is  not  competent,  however,  simply 
for  the  purpose  of  showing  that  certain  inhabitants 
of  the  town  had  notice  of  the  defect.4  It  is  valu- 

1  Under  this  head  may  be  included  evidence  of  the  existence  of 
a  permanent  cause  which  would  naturally  produce  the  defect  in 
question.     Thus  where   the  defect  was  a  ridge  of  ice  extending 
over  the  sidewalk  from  the  outlet  of  a  water  conductor,  which  had 
for  a  long  time  emptied  the  water  from  the  roof  of  the  adjacent 
building  upon  the  sidewalk,  it  was  held  that  the  facts  relating  to 
the  existence  of  this  conductor  might  properly  be  considered  by 
the  jury  upon  the  question  of  notice.    Olson  v.  Worcester,  142 
Mass.  536  (1886). 

2  See  citations  under  §  46,  note  1. 

8  Chase  v.  Lowell,  151  Mass.  422  (1890). 

4  Hinckley  v.  Somerset,  145  Mass.  326  (1887). 

As  to  the  venue  of  actions  under  this  statute,  it  is  provided  as 


THE  LIABILITY   OF  MUNICIPAL   CORPORATIONS.      75 

able  solely  as  forming  the  basis  for  an  inference 
that  the  proper  authorities  knew,  or  with  reason- 
able care  might  have  known,  of  the  existence  of 
the  defect. 

follows:  Pub.  Sts.  ch.  161,  s.  7.  Actions  against  a  city,  town,  or 
person,  to  recover  for  injury  or  damage  received  through  a  defect 
or  want  of  repair  or  of  sufficient  railing  in  or  upon  a  highway, 
town  way,  causeway,  or  bridge,  shall  be  brought  in  the  county 
wherein  the  said  city  or  town  is  situated  or  said  person  resides ; 
except  that  such  actions  against  the  city  of  Boston  may  be  brought 
iu  the  county  of  Middlesex,  or  in  the  county  of  Norfolk,  or  in  the 
county  in  which  the  party  bringing  such  action  resides ;  and  such 
actions  against  the  town  of  Nantucket,  or  against  any  town  in 
Dukes  County,  may  be  brought  in  the  County  of  Bristol. 

As  to  changes  iu  venue,  see  St.  1887,  ch.  347.    And  see  also 
Osgood  v.  Lynn,  130  Mass.  335  (1881). 


76  STATUTORY  TORTS  IN   MASSACHUSETTS. 


PART  II. 

THE    LIABILITY  OF   OWNERS  OR   KEEPERS    OF 
DOGS. 

PUBLIC  STATUTES,  CHAPTER  102,  SECTION  93. 
Every  owner  or  keeper  of  a  dog  shall"  forfeit  to  any 
person  injured  by  it  double  the  amount  of  the  damage 
sustained  by  him,  to  be  recovered  in  an  action  of 
tort.1 

§  69.  The  Nature  of  the  Liability.  —  This  statute 
does  not  make  the  owning  or  keeping  of  a  dog 
unlawful ;  it  simply  makes  the  owner  or  keeper 
liable  for  the  acts  of  his  dog,  giving  all  the  dam- 
ages to  the  person  injured.  It  is,  therefore,  in  its 
nature  essentially  a  remedial,  and  not  a  penal, 
statute.2 

§  70.  The  Effect  of  the  Statute  ;  Scienter.  —  At 
common  law  an  action  could  not  be  maintained 
against  an  owner  or  keeper  of  a  dog  without  proof 
that  the  defendant  knew  that  his  dog  was  accus- 

1  The  act  first  imposing  this  liability  was  passed  in  1799.     Acts 
1798,  ch.  54,  s.  3.     The  provisions  of  that  act  have  been  repeatedly 
re-enacted  without  substantial  change.    See  Rev.  Sts.  ch.  58,  s.  13; 
Gen.  Sts.  ch.  88,  s.  59  ;  Pub.  Sts.  ch.  102,  s.  93. 

2  Le  Forest  v.  Tolman,  117  Mass.  109  (1875).     Mitchell  v.  Clapp, 
12  Cush.  278  (1853).     It  is  not  necessary  to  allege,  therefore,  that 
the  injurious  acts  were  done  contra  formam  statuti.     Mitchell  v. 
Clapp,  ubi  supra. 


LIABILITY   OF   OWNERS   OR   KEEPERS   OP   DOGS.      77 

tomed  to  attack  and  bite  mankind.1  The  very 
essence  of  the  liability  was  the  keeping  or  owning 
of  a  ferocious  dog,  knowing  its  dangerous  char- 
acter. All  this  the  statute  has  changed,  enlarging 
the  common  law  liability  so  far  that  it  is  no  longer 
necessary  to  allege  or  prove  that  the  defendant 
knew  of  the  dangerous  propensities  of  his  dog. 
The  fact  alone  that  the  dog  caused  damage  to  a 
person  is  sufficient  to  fix -the  liability.2 

§  71.  Proximate  Cause.  —  The  acts  of  the  dog 
must  be  the  sole  proximate  cause  of  the  plaintiff's 
injury.  The  intervention,  however,  of  a  wholly 
unforeseen  event  or  of  the  action  of  another  animal 
will  not  necessarily  break  the  causal  connection. 
Thus  where  the  defendant's  dog  made  a  sudden 
rush  at  the  plaintiff's  horse,  barking  and  leaping 
at  his  head,  and  thereby  frightening  him,  and, 
while  the  driver  was  endeavoring  to  control  him, 
the  reins  broke  and  in  consequence  the  carriage 
struck  against  a  post  and  the  injury  resulted,  it 
was  held  that  the  attack  of  the  dog  was  the  sole 
proximate  cause  of  the  injury.3  And  so  where 
the  defendant's  dog  made  a  demonstration  of 
attack  upon  the  plaintiff's  horse  and  frightened 
him  so  that  he  shied,  upset  the  carriage  and  in- 

1  See  Popplewell  v.  Pierce,  10  Cash.  509  (1852),  and  cases 
cited. 

2  Pressey  r.  Wirth,  3  Allen,  191  (1861).     Galvin  v.  Parker,  154 
Mass.  346  (1891),s<?m6/e. 

As  to  the  degree  of  importance  to  be  attached  to  the  character 
of  the  dog  under  this  statute,  see  §  78,  post. 
8  Sherman  v.  Favour,  1  Allen,  191  (1861). 


78  STATUTORY  TORTS   IN   MASSACHUSETTS. 

jured  the  plaintiff,  it  was  held  that  the  shying  of 
the  horse,  if  due  to  the  acts  of  the  dog  and  not  to 
any  vicious  habit  of  the  horse,  would  not  prevent 
the  plaintiff  from  recovering.1 

Likewise,  an  illegal  act  on  the  part  of  the 
plaintiff,  provided  such  illegal  act  has  no  tendency 
to  produce  the  assault  or  the  consequent  injury, 
will  not  constitute  a  contributing  cause.  Thus, 
where  the  plaintiff  was  injured  by  an  attack  of  a 
dog,  while  travelling  on  the  Lord's  day  in  violation 
of  the  statutory  provision,2  it  was  held  that  the 
act  of  travelling  on  that  day  was  a  mere  condition, 
and  did  not  in  any  way  contribute  to  the  injury.3 

§  72.  Due  Care.  —  That  the  doctrine  of  contrib- 
utory negligence  applies  to  actions  under  this 
statute,  there  can  be  no  doubt,  but  to  what  extent 
has  not  yet  been  definitely  decided.4  Upon  this 
question  the  court  has  said :  "  We  have  no  doubt 
that  where  the  plaintiff  incites  or  interferes  with  a 
dog,  and  is  bitten,  his  due  care  must  be  shown  ; 
and  that  the  same  is  true  where  he  interferes  with 
two  dogs  that  are  fighting.  .  .  .  Whether  the  rule 

1  Denison  v.  Lincoln,  131  Mass.  236  (1881). 

2  Pub.  Sts.  ch.  98,  s.  3  ;  repealed,  St.  1887,  ch  391,  s.  4. 
*  White  v.  Lang,  128  Mass.  598  (1880). 

4  Raymond  v.  Hodgson,  161  Mass.  184  (1894).  Boulester  v. 
Parsons,  161  Mass.  182  (1894)  Matteson  v.  Strong,  159  Mass.  497 
(1893).  Hathaway  v.  Tinkham,  148  Mass.  85  (1888).  Plumley  v. 
Birge,  124  Mass.  57  (1878).  Munn  v.  Reed,  4  Allen,  431  (1862). 

The  facts  may  show  that  the  alleged  negligence  does  not  con- 
tribute to  the  injury,  but  is  simply  a  condition.  Such  was  held  to 
be  the  case  where  the  alleged  negligence  consisted  in  leading  a 
horse  behind  a  wagon.  Boulester  v.  Parsons,  161  Mass.  182  (1894) 


LIABILITY   OP   OWNERS   OR   KEEPERS   OF   DOGS.      79 

of  contributory  negligence  should  be  applied  in 
other  cases  need  not  now  be  decided."1 

The  same  degree  of  care  in  the  treatment  of  a 
dog  cannot  be  exacted  from  a  child  as  from  a  per- 
son of  mature  years,  but  only  that  degree  which 
could  reasonably  be  expected  from  a  child  of  his 
age  and  capacity.  Therefore,  treatment  that  would 
be  a  want  of  due  care  in  a  person  of  mature  years 
may  not  be  so  in  the  case  of  a  child.2  The  thought- 
lessness and  heedlessness  natural  to  childhood 
must  be  taken  into  account,  and  although  the  child 
may  be  old  enough  to  know,  if  he  stopped  to  re- 
flect, that  striking  a  dog  would  be  likely  to  provoke 
him  to  bite,  yet  in  striking  him  he  may  have  been 
acting  as  a  child  of  his  age  would  ordinarily  act 
under  the  same  circumstances.3 

The  degree  of  care  exercised  by  the  child's 
mother  may  also  be  an  important  consideration. 
For  "  if  the  child  Avas  at  the  time  of  the  injury  in 
the  custody  and  under  the  control  of  the  mother, 

1  Raymond  v.  Hodgson,  161  Mass.   184  (1894).    Boulester  v. 
Parsons,  161  Mass.  182  (1894),  semble,  accord. 

It  has  been  held  that  it  could  not  be  said  as  a  matter  of  law 
that  a  plaintiff  who  put  his  hand  upon  a  dog  in  his  custody  in 
order  to  bring  him  along,  and  to  prevent  a  fight  with  the  defend- 
ant's dog,  was  negligent.  "  In  cases  of  this  kind  a  great  deal 
depends  on  the  size,  the  apparent  disposition,  the  conduct  and  the 
situation  of  the  two  dogs,  and  upon  other  circumstances  which  are 
usually  proper  for  the  consideration  of  the  jury."  Matteson  v. 
Strong,  159  Mass.  497  (1893). 

2  Mnnn  v.  Reed,  4  Allen,  431   (1862).    Plumley  v.  Birge,  124 
Mass.  57  (1878). 

»  Plumley  v.  Birge,  124  Mass.  57,  58  (1878). 


80  STATUTORY  TORTS  IN  MASSACHUSETTS. 

and  she  did  not  exercise  that  care  and  watchful- 
ness over  it  which  a  person  of  mature  years,  hav- 
ing the  custody  of  such  a  child,  and  standing  in 
the  relation  to  it  which  she  did,  ordinarily  would, 
having  reference  to  all  the  facts  in  the  case,  and 
the  injury  was  caused  in  consequence  of  such  want 
of  care  on  the  part  of  the  mother,  or  if  such  want 
of  watchfulness  on  her  part  contributed  to  the  in- 
jury," the  infant  is  not  entitled  to  recover.  It  has 
been  held  under  this  rule  that  it  was  not  prima 
facie  evidence  of  a  want  of  due  care  for  a  mother 
to  allow  her  child  to  play  with  a  strange  dog.1 

§  73.  Application  of  the  Statute  to  Injuries  re- 
ceived outside  State  Limits.  —  It  is  a  principle  of 
the  law  of  torts  that,  in  order  to  maintain  an 
action  for  an  injury  to  the  person,  the  act  that  is 
the  cause  of  the  injury  and  the  foundation  of  the 
action  must  be  actionable  or  punishable  by  the 
law  of  the  place  in  which  it  was  done.2  This  rule 
is  applied  to  actions  based  upon  this  statute.  Thus 
where  the  defendant  was  a  resident  of  Massachu- 
setts, and  kept  his  dog  at  his  home  or  place  of 
business  within  the  Commonwealth,  but  it  strayed 
into  New  Hampshire  and  there  injured  the  plain- 
tiff, it  was  held  that  since  the  injury  was  done  in 
New  Hampshire  and  was  not  actionable  or  indict- 
able by  its  laws,  no  action  could  be  maintained  in 
Massachusetts.3 

1  Munn  v.  Reed,  4  Allen,  431  (1862). 

2  Bishop,  Non-Contract  Law,  §  1280  (1889).     Davis  v.  New  York 
&  New  England  Railroad,  143  Mass.  301  (1887). 

s  Le  Forest  v.  Tolman,  117  Mass.  109  (1875). 


LIABILITY  OF  OWNERS  OR  KEEPERS  OF  DOGS.      81 

"  EVERY  OWNER  OR  KEEPER  OF  A  DOG." 

§  74.  The  Liability  several ;  Its  Grounds.  —  Since 
the  statute  is  in  derogation  of  the  common  law,  and 
there  is  no  evidence  of  a  contrary  intention  on 
the  part  of  the  legislature, .this  provision  is  strictly 
construed,  and  it  is  held  that  the  liability  of  the 
owner  and  the  keeper  is  not  joint  or  several, 
nor  both  joint  and  several,  but  several  only.  The 
plaintiff  must,  therefore,  if  the  owner  and  the  keeper 
are  distinct  persons,  elect  which  of  them  he  will 
pursue,  and  having  made  his  selection,  is  bound 
by  it.  Thus  where  the  plaintiff,  having  recovered 
a  judgment  for  his  injury  against  the  owner  of  the 
dog,  of  which  judgment  he  was  unable  to  get 
satisfaction,  brought  suit  against  the  keeper  in 
order  to  recover  for  the  same  injuries,  it  was  held 
that  he  was  not  entitled  to  maintain  the  action.1 

The  provision,  however,  affords  two  distinct 
grounds  upon  which  an  action  under  the  statute  may 
be  maintained,  namely,  the  owning  and  the  keep- 
ing of  a  dog.  The  plaintiff  may  base  his  action 
upon  the  one  ground  or  the  other  ;  or  if  he  is  in 
doubt  whether  the  defendant  was  the  owner  or 
the  keeper,  he  may  set  out  both  grounds  in  his 
declaration.2 

1  Galvin  v.  Parker,  154  Mass  346  (1891). 

2  See  O'Donnell  v.  Pollock,  170  Mass.  441  (1898). 

The  words  "  owner  "  and  "  keeper  "  when  used  in  a  declaration 
under  this  statute  are  considered  to  be  descriptive  averments,  and 
must  be  strictly  proved.  Buddington  r.  Shearer,  20  Pick.  477 
(1838). 

6 


82  STATUTORY  TORTS   IN   MASSACHUSETTS. 

§  75.  What  constitutes  a  Keeper.  —  Just  what 
elements  must  be  shown  to  exist  in  order  to  hold 
a  person  under  this  statute  as  keeper  of  the  dog 
has  not  been  fully  decided.  The  later  cases  agree, 
however,  that  as  a  matter  of  law  it  is  not  enough 
to  show  merely  that  the  defendant  temporarily 
harbored  the  dog,  or  that  it  was  kept  by  its  owner 
on  the  premises  of  the  defendant  with  the  knowl- 
edge or  acquiescence  or  permission  of  the  defend- 
ant.1 It  must  be  made  further  to  appear  that  the 
dog  was  on  the  premises  for  the  benefit  or  in  the 
interest  of  the  defendant,  or  that  he  exercised 
control  over  it,  or  that  some  other  element  of  an 
equally  conclusive  nature  was  involved  in  the 
case. * 

The  question  whether  or  not  the  defendant  was 
a  keeper  of  the  dog  is  a  question  of  fact  to  be 
submitted  to  the  jury  under  proper  instructions.2 

§  76.  The  Acts  of  the  Dog.  —  Not  all  of  the  acts 
of  a  dog,  it  seems,  although  an  injury  to  a  person 
may  result  from  them,  will  render  the  owner  or 
keeper  liable  under  this  statute.3  To  serve  as  the 

1  Collingill  v.  Haverhill,  128  Mass.  218  (1880).     Whittemore  v. 
Thomas,  153  Mass.  347  (1891). 

2  O'Donnell  v.  Pollock,  170  Mass.  441  (1898). 

In  Barrett  v.  Maiden  &  Melrose  Railroad,  3  Allen,  101  (1861), 
it  appeared  that  the  dog  in  question  was  kept  at  the  defendant's 
car  barns  for  several  weeks  prior  to  the  injury  by  one  of  its  em- 
ployees, and  that  this  was  done  with  the  knowledge  and  implied 
assent  of  its  general  superintendent.  The  court  held  that  this 
evidence  was  sufficient  to  warrant  the  jury  in  finding  that  the  dog 
was  kept  by  the  defendant. 

3  Sherman  i?.  Favour,  1  Allen,  191  (1861). 


LIABILITY   OF   OWNERS   OR   KEEPERS   OF   DOGS        83 

basis  of  an  action,  its  acts  must,  as  a  general  rule, 
constitute  a  direct  attack,  or  at  least  something 
amounting  to  a  demonstration  of  attack.1 

But  provided  its  acts  amount  either  to  a  direct 
attack  or  to  a  demonstration  of  attack,  it  is  not 
material  what  kind  of  acts  they  are.  They  may 
consist  of  an  actual  assault,  or  *)f  barking  at,  or 
jumping  or  running  toward,  the  object  of  the 
attack ;  and  although  these  acts  be  done  at  some 
distance  from  the  object  of  the  attack,  the  owner 
or  keeper  of  the  dog  may,  nevertheless,  be  respon- 
sible for  the  consequences.2 

§  77.  The  Intent  of  the  Dog.  — The  intent  with 
which  the  dog  makes  the  attack  or  demonstration 
is  not  material ;  the  liability  under  this  statute 
remains  the  same  whether  it  acts  in  a  playful  or 
a  vicious  mood.  Thus  where  the  plaintiff  was 
thrown  down  and  injured  by  the  defendant's  dog 
leaping  upon  him,  it  was  held  that  he  was  entitled 
to  recover  although  it  appeared  that  the  dog  did 
the  act  in  play  only.3 

§  78.  The  Character  of  the  Dog.  —  Although 
evidence  of  the  character  of  the  dog  is  not  material, 
so  far  as  the  liability  of  the  owner  or  keeper  under 
this  statute  is  concerned,4  yet  it  may  be  competent 
as  tending  to  show  that  it  did  the  acts  in  question. 
The  law  recognizes  the  fact  that  "animals  are 

1  See  Denison  v.  Lincoln,  131  Mass.  236  (1881).    Sherman  v. 
Favour,  1  Allen,  191  (1861). 

2  Denison  v.  Lincoln,  131  Mass.  236  (1881). 

8  Hathaway  v.  Tinkham,  148  Mass.  85  (1888),  point  3. 
4  See  §  70,  ante. 


84  STATUTOEY   TORTS   IN   MASSACHUSETTS. 

more  likely  to  act  in  a  certain  way  at  a  particular 
time,  if  the  action  is  in  accordance  with  their  es- 
tablished habit  or  usual  conduct,  than  if  it  is  not. 
There  is  a  probability  that  an  animal  will  act  as 
he  is  accustomed  to  act  under  like  circumstances." 
It  has  been  held,  therefore,  that  evidence  tending 
to  show  that  the  dog  made  other  attacks  upon 
other  teams  in  like  manner  was  admissible  in  order 
to  show  that  it  made  an  attack  in  the  case  before 
the  court.1 

"  SHALL  FORFEIT  TO  ANT  PERSON  INJURED  BY  IT." 

§  79.  The  Scope  of  the  Section.  —  The  term 
"  any  person"  as  here  used  is  construed  to  mean 
any  human  being  who  has  received  an  injury  in 
consequence  of  the  acts  of  a  dog.  The  nature  of 
that  injury  is  not  material ;  it  may  be  either  to  the 
plaintiff's  person  or  to  his  property.2  The  Court 
in  Sherman  v.  Favour  3  says  of  the  statute  in  this 

1  Broderick  v.  Higginson,  169  Mass.  482  (1897). 

The  habit  of  the  dog  may  thus  be  proved  by  evidence  of  fre- 
quent observations  of  particular  instances,  s.  c. 

For  a  case  involving  the  question  of  the  use  of  a  license  issued 
prior  to  the  injury  as  evidence  of  the  identity  of  the  dog  that  the 
defendant  owned,  in  order  to  show  that  it  was  some  other  dog  that 
caused  the  injury,  see  Burns  v.  Stuart,  168  Mass.  19  (1897). 

2  M'Carthy  v.  Guild,  12  Met.  291  (1874).    Brewer  v.  Crosby,  11 
Gray,  29  (1858).     Buddington  v.  Shearer,  20  Pick.  477  (1838). 

8  1  Allen,  191  (1861). 

In  M'Carthy  v.  Guild,  12  Met.  291  (1874),  it  was  held  that  a 
father  might  maintain  an  action  under  this  statute  to  recover  for 
the  loss  of  services,  for  the  medical  attendance  and  care,  etc.,  of 
his  minor  son  during  an  illness  that  was  occasioned  by  the  bite  of 
the  defendant's  dog.  The  court  in  that  case  says  :  "  We  think  the 


LIABILITY   OP   OWNERS   OR   KEEPERS   OF   DOGS.       85 

regard  :  "  It  is  general  in  its  terms,  and  was  doubt- 
less intended  to  provide  a  remedy  coextensive  with 
the  mischief,  which  any  person  might  sustain  by 
reason  of  any  act  of  a  dog,  which  occasioned  injury 
to  him  or  his  property." 

"DOUBLE  THE  AMOUNT  OF  THE  DAMAGE  SUSTAINED 
BY  HIM." 

§  80.  The  Elements  of  Damage.  —  In  an  action 
under  this  statute,  the  plaintiff  is  entitled  to  re- 
cover not  only  for  the  physical  pain  and  suffering, 
but  also  for  any  injury  to  his  nervous  system  and 
for  any  loss  in  his  mental  or  physical  capacity. 
Any  facts,  therefore,  tending  to  show  a  shock  to 
the  nervous  system,  as  that  the  plaintiff,  since  the 
injury,  has  shown  signs  of  fright  and  excitement  at 
the  sight  of  any  dog,  are  competent.1 

statute  has  only  declared  the  general  principle,  giving  double 
damages  to  any  person  injured  by  a  dog,  leaving  us  to  recur  to  the 
principles  of  the  common  law,  to  ascertain  the  party  legally  en- 
titled to  recover  for  any  particular  injury,  that  may  be  the  subject 
of  an  action.  Giving  the  statute  this  construction,  it  provides  an 
adequate  remedy  for  the  entire  damages  that  may  result  from  any 
such  injury." 

For  a  case  where  it  was  held  that  the  plaintiff  could  not  recover 
unless  it  was  proved  that  the  dog  actually  bit  her  see  Searles  v. 
Ladd,  123  Mass.  580  (1878). 

l  Roswell  v.  Leslie,  133  Mass.  589  (1882). 

Where  the  injury  was  done  by  two  doga  together,  only  one  of 
which  belonged  to  the  defendant,  it  was  held  that  he  was  liable 
only  for  the  mischief  done  by  his  own  dog,  even  though  there 
might  be  difficulty  in  ascertaining  the  amount  of  damage  done  by 
each  dog.  "  If  it  could  be  proved  what  damage  was  done  by  one 
dog,  and  what  by  the  other,  there  would  be  no  difficulty ;  and  on 


86  STATUTORY  TORTS  IN   MASSACHUSETTS. 

§  81.  Doubling  the  Damages.  —  The  practice 
with  respect  to  doubling  the  damages  has  not  been 
uniform.  The  amount  awarded,  therefore,  may  be 
doubled  either  by  the  court  or  by  the  jury.  Hence 
no  exception  will  be  sustained  to  an  instruction  to 
the  jury  that  after  having  ascertained  the  actual 
damage,  they  should  render  their  verdict  for  double 
that  amount.1 

failure  of  such  proof,  each  owner  might  be  liable  for  an  equal 
share  of  the  damage,  if  it  should  appear  that  the  dogs  were  of 
equal  power  to  do  mischief,  and  there  were  no  circumstances  to 
render  it  probable  that  greater  damage  was  done  by  one  dog  than 
by  the  other."  Buddington  v.  Shearer,  20  Pick.  477,  479  (1838). 
1  Pressey  v.  Wirth,  3  Allen,  191  (1861). 


LIABILITY  OF  COMMON  CARRIERS  OF  PASSENGERS.     87 


PART  III. 

THE   LIABILITY  OF   COMMON  CARRIERS  OF 
PASSENGERS. 

I.    Steam  Railroads. 

PUBLIC  STATUTES,  CHAPTER  112,  SECTION  212.  If 
by  reason  of  the  negligence  or  carelessness  of  a  cor- 
poration operating  a  railroad  or  street  railway,  or  of 
the  uufitness  or  gross  negligence  or  carelessness  of  its 
servants  or  agents  while  engaged  in  its  business,  the 
life  of  a  passenger,  or  of  a  person  being  in  the  exercise 
of  due  diligence  and  not  a  passenger  or  in  the  em- 
ployment of  such  corporation,  is  lost,  the  corporation 
shall  be  punished  by  fine  of  not  less  than  five  hundred 
nor  more  than  five  thousand  dollars,  to  be  recovered 
by  indictment  prosecuted  within  one  year  from  the 
time  of  the  injury  causing  the  death,  and  paid  to  the 
executor  or  administrator  for  the  use  of  the  widow 
and  children  of  the  deceased  in  equal  moieties ;  or,  if 
there  are  no  children,  to  the  use  of  the  widow ;  or, 
if  no  widow,  to  the  use  of  the  next  of  kin  ;  but  a  corpo- 
ration operating  a  railroad  shall  not  be  so  liable  for 
the  loss  of  life  by  a  person  while  walking  or  being 
upon  its  road  contrary  to  law  or  to  the  reasonable 
rules  and  regulations  of  the  corporation.  If  the  corpo- 


88  STATUTORY  TORTS   IN   MASSACHUSETTS. 

ration  is  a  railroad  corporation,  it  shall  also  be  liable 
in  damages,  not  exceeding  five  thousand  nor  less  than 
five  hundred  dollars,  to  be  assessed  with  reference  to 
the  degree  of  culpability  of  the  corporation  or  of  its 
servants  or  agents,  and  to  be  recovered  in  an  action 
of  tort,  commenced  within  one  year  from  the  injury 
causing  the  death,  by  the  executor  or  administrator  of 
the  deceased  person,  for  the  use  of  the  persons  herein- 
before specified  in  the  case  of  an  indictment.  But  no 
executor  or  administrator  shall,  for  the  same  cause, 
avail  himself  of  more  than  one  of  the  remedies  given 
by  this  section. 

ACTS,  1883,  CHAPTER  243.  Section  two  hundred 
and  twelve  of  chapter  one  hundred  and  twelve  of  the 
Public  Statutes,  is  hereby  amended  by  inserting  after 
"  indictment"  in  the  twenty-second  line,  the  following 
words,  "  and  if  an  employee  of  such  corporation 
being  in  the  exercise  of  due  care  is  killed  under  such 
circumstances  as  would  have  entitled  the  deceased  to 
maintain  an  action  for  damages  against  such  corpora- 
tion, if  death  had  not  resulted,  the  corporation  shall 
be  liable  in  the  same  manner  and  to  the  same  extent 
as  it  would  have  been  if  the  deceased  had  not  been  an 
employee." 

§  82.  The  Liability  for  causing  Death.  —  Since 
the  common  law  does  not  regard  the  death  of  a 
human  being  as  a  matter  that  can  be  complained 
of  as  an  injury  to  third  persons,  it  recognizes  no 
liability  under  any  circumstances  as  resting  upon 
a  railroad  corporation  for  causing  the  death  of  a 


LIABILITY  OF  COMMON  CARRIERS  OF  PASSENGERS.     89 

person.1  Therefore,  all  actions  against  railroad 
corporations  based  upon  the  death  of  a  person 
under  the  circumstances  described  in  this  section 
must  be  brought  under  its  provisions ;  and  they 
will  be  deemed  to  be  so  brought  even  though  the 
declaration  does  not  contain  all  of  those  allega- 
tions that  are  essential  in  an  action  under  the 
section.2 

§  83.  The  Nature  of  the  Liability.  —  In  substance 
the  provisions  of  this  section  are  penal.  It  is 
their  primary  purpose  to  impose  a  penalty  upon 
railroad  corporations  as  a  punishment  for  their 
own  negligence,  or  for  the  unfitness  or  gross  neg- 
ligence of  those  employed  by  them  ;  yet  it  differs 
from  purely  penal  legislation  in  that  the  amount  of 
the  fine  is  given,  not  to  the  Commonwealth,  but  to 
the  personal  representatives  of  the  deceased,  to  be 
by  them  applied  solely  for  the  benefit  of  the  widow 
and  children,  or  of  the  next  of  kin,  as  the  case  may 
be.3  The  penal  aspect  of  the  section  is  not  altered 
in  the  least  where  the  proceedings  are  by  action 
of  tort  instead  of  by  indictment,  for  the  former 
method  of  procedure  is  merely  a  substitute  for 
the  latter.4 

1  Carey  v.  Berkshire  Railroad  Co.,  1  Cusli.  475  (1848). 

*  Hicks  v.  New  York,  etc.  Railroad,  164  Mass.  424,  429  (1895). 
8  Comm.  v.  Boston  &  Lowell  Railroad,  134  Mass.  211  (1883). 

*  Littlejohn  v.  Fitchburg  Railroad,  148  Mass.  478,  482  (1889). 
Siuce  the  statute  is  penal  in  its  nature  and  general  purposes,  an 

action  based  upon  it  cannot  be  maintained  in  the  federal  courts. 
Lymaii  r.  Boston  &  Albany  Railroad,  70  Fed.  'Rep.  409  (1895). 
The  same  is  true  of  actions  based  upon  the  statute  as  amended  by 


90  STATUTORY  TORTS   IN   MASSACHUSETTS. 

Since  the  liability  is  in  essence  and  effect  of  a 
penal  nature,  a  railroad  corporation  cannot  secure 
a  release  from  it  by  any  agreement  made  with  the 
deceased  prior  to  the  accident.1  Thus,  where  the 
deceased  was  killed  while  travelling  upon  a  ticket 
upon  the  back  of  which  was  printed  the  stipulation 
that  the  railroad  should  not  be  liable  under  any 
circumstances  for  the  personal  injury  of  the  person 
who  accepted  and  used  it,  the  court  held  that 
that  agreement  did  not  release  the  corporation 
from  the  liability  imposed  by  this  section.1 

§  84.  The  Scope  of  the  Section.  —  Perhaps  the 
most  obvious  field  for  the  application  of  the  pro- 
visions of  this  section  is  where  the  deceased  was 
instantly  killed.  The  liability  is  not,  however, 
confined  to  such  cases.  Those  where  the  death 
was  not  instantaneous  are  also  held  to  come  within 
its  terms,  even  though  in  that  class  of  cases  an 
action  at  common  law  for  the  conscious  suffering 
may  survive.  This  construction  is  based  upon  the 
fact  that  the  liability  under  the  statute  has  a  dif- 
ferent object  in  view  —  not  merely  to  secure  com- 
pensation to  the  relatives  of  the  deceased,  but 
primarily  to  punish  the  railroad.2 

Acts  1883,  ch.    243.     Perkins  v.  Boston  &  Albany   Railroad,  90 
Fed.  Rep.  321  (1898). 

1  Doyle  r.  Fitchburg  Railroad,  162  Mass.  66,  71  (1894).    Comm. 
v.  Vermont  &  Massachusetts  Railroad,  108  Mass.  7,  12  (1871). 

2  Comm.  v.  Metropolitan  Railroad  Co.,  107  Mass.  236  (1871). 
And  the  recovery  of  a  judgment  for  the  conscious  suffering  will 

not  bar  an  action  -under  this  section  for  the  death.     Clare  v.  New 
York  &  New  England  Railroad,  172  Mass.  211  (1898). 


LIABILITY  OP  COMMON  CARRIERS  OP  PASSENGERS.     91 

"  IF  BY  REASON  OF  THE  NEGLIGENCE  OR  CARELESSNESS 
OF  A  CORPORATION  OPERATING  A  RAILROAD  OR  STREET 
RAILWAY,  OR  OF  THE  UNFITNESS  OR  GROSS  NEGLIGENCE  OR 
CARELESSNESS  OF  ITS  SERVANTS  OR  AGENTS  WHILE  EN- 
GAGED IN  ITS  BUSINESS." 

§  85.  The  Negligence  of  the  Corporation  and  of 
its  Servants.  —  In  this  provision  a  clear  distinction 
is  drawn  between  the  negligence  of  the  corporation 
itself,  and  the  gross  negligence  of  its  servants  or 
agents.  This  distinction  has  been  observed  and 
often  emphasized  in  the  cases  that  have  been  de- 
cided under  the  section,  and  has  been  productive 
of  an  important  consideration.  That  consideration 
is  that,  since  the  negligence  of  the  corporation 
is  one  distinct  thing,  and  the  gross  negligence  of 
its  servants  is  another,  the  plaintiff  must  select 
and  accurately  set  forth  in  his  pleading,  whether 
it  be  an  indictment  or  a  declaration,  upon  which 
of  these  two  alternatives  he  intends  to  rely ;  and 
he  must  then  support  the  alternative  selected  by 
proof  strictly  applicable  thereto.  It  follows,  there- 
fore, that  an  averment  in  his  pleading  of  the  first 
of  these  grounds  is  not  supported  by  evidence 
tending  to  establish  the  second  ground :  the  court 
will  not  infer  the  existence  of  negligence  on  the 
part  of  the  corporation  from  proof  of  negligence 
on  the  part  of  its  unofficial  servants  or  agents.1 

§  86.  The  Negligence  of  the  Corporation.  —  The 
operation  of  this  section  is  not  confined  to  any 

1  Comm.  v.  Boston  &  Maine  Railroad,  133  Mass.  383,  384 
(1882).  Comm.  v.  Fitchburg  Railroad,  120  Mass.  372  (1876). 


92  STATUTORY  TORTS   IN   MASSACHUSETTS. 

particular  kind  of  negligent  acts  on  the  part  of 
the  corporation.  As  was  said  by  Mr.  Justice 
Gray  in  Commonwealth  v.  Boston  &  Worcester 
Railroad1  "The  negligence  or  carelessness  which 
is  thus  made  criminal  is  not  confined  to  the 
omission  to  comply  with  specific  requirements  of 
the  statutes  of  the  Commonwealth,  but  extends 
to  any  want  of  reasonable  care  which  would  give 
the  party  injured,  if  not  immediately  killed,  a 
right  of  action  against  the  corporation." 

Where  suit  was  brought  for  the  purpose  of  en- 
forcing a  liability  under  this  section  for  causing 
death  by  a  collision  at  a  crossing  of  a  highway  at 
grade,  it  was  held  that  the  liability  of  the  cor- 
poration might  be  established  by  showing  that  it 
had  omitted  to  take  such  extra  precautions  to 
warn  travellers  as  the  circumstances  required, — 
such,  for  example,  as  the  erection  of  gates,  or  the 
stationing  of  a  flagman,  at  the  crossing.  The  test 
for  the  determination  of  the  question  whether  or 
not  the  failure  to  take  some  such  extra  precaution 
was  negligence  in  any  particular  case  is,  Does 
the  safety  of  the  public  reasonably  require  such 
precaution  ?  It  is,  therefore,  a  question  of  fact  for 
the  jury  in  each  case  whether  the  warnings  re- 
quired by  the  statutes 2  were  sufficient  to  protect 
the  public,  or  whether  additional  precautions  ought 
to  have  been  taken.  But  "  in  order  to  authorize 
a  jury  to  find  negligence  in  not  taking  such  ad- 

1  101  Mass.  201  (1869). 

8  See  Pub.  Sts.  ch.  112,  ss.  163,  164,  and  amendments  thereof. 


LIABILITY  OF  COMMON  CARRIERS  OF  PASSENGERS.     93 

ditional  precautions,  there  must  "be  evidence  be- 
yond the  mere  fact  that  there  is  a  public  way 
crossed  by  a  railroad  at  grade.  There  must  be 
something  in  the  configuration  of  the  land,  or  in 
the  construction  of  the  railroad,  or  in  the  structures 
in  the  vicinity,  or  in  the  nature  or  amount  of  the 
travel  of  the  highway,  or  in  other  conditions, 
which  renders  ringing  the  bell  and  sounding  the 
whistle  inadequate  properly  to  warn  the  public  of 
danger."1 

§  87.  The  Gross  Negligence  of  its  Servants.  — 
Still  another  distinction  contained  in  this  provision 
is  to  be  noted,  namely,  that  between  negligence 
and  gross  negligence.  The  liability  of  the*  corpo- 
ration for  the  acts  of  its  agents  arises  only  when 
their  negligence  is  gross.  Therefore  where  the 
plaintiff  bases  his  action  upon  the  negligence  of 
the  servants  or  agents  of  the  railroad,  he  must 
both  allege  and  prove  that  such  negligence  was 
gross  —  evidence  tending  to  show  mere  negligence 
will  not  sustain  this  burden  of  proof.2 

§  88.      "  Operating    a    Railroad."  —  These    words 

1  Hubbard  v.  Boston  &  Albany  Railroad,  162  Mass.  132  (1894). 
Comm.j?.  Boston  &  Worcester  Railroad,  101  Mass.  201  (1869). 

2  Hicks  v.  New  York,  etc.  Railroad,  164  Mass.  424,  429  (1895). 
Comm.  v.  Boston  &  Maine  Railroad,  133  Mass.  383  (1882).     Comm. 
v.  Fitchburg  Railroad,  120  Mass.  372  (1876).     See  also  Chisholra 
v.    Old  Colony  Railroad,  159  Mass.  3  (1893).     Merrill  v.  Eastern 
Railroad,  139  Mass.  238  (1885). 

Railroad  corporations  are  not  responsible  for  the  acts  or  omis- 
sions of  persons  or  companies  doing  an  express  business  over  their 
lines,  or  of  the  agents  or  servants  of  such  persons  or  companies. 
St.  1894,  ch.  469,  s.  3. 


94  STATDTOKY  TORTS   IN  MASSACHUSETTS. 

do  not  limit  the  liability  to  injuries  occasioned  by 
locomotives,  or  cars,  or  moving  trains,  nor  to 
accidents  happening  upon  its  tracks.  They  were 
not  intended  to  confine  the  operation  of  the  section 
to  cases  where  the  corporation  was  at  the  time  of 
the  accident  actually  engaged  in  operating  a  rail- 
road in  the  popular  sense  of  that  phrase.  They 
are  rather  words  of  description,  designating  the 
kind  of  corporation  intended  to  be  subjected  to 
the  liability.  Thus  where  the  deceased  was  killed 
while  engaged  in  transferring  coal  from  a  vessel  to 
the  defendant's  freight  cars  to  be  forwarded  over 
its  road,  it  was  held  that  the  defendant  was,  while 
engaged  in  that  operation,  a  corporation  operating 
a  railroad  within  the  meaning  of  this  provision.1 

§  89.  "  While  engaged  in  its  Business."  —  These 
words  include  all  acts  which  are  reasonably  in- 
cident to  the  business  of  the  corporation,  whether 
done  upon  it  own  tracks  or  upon  the  tracks  of 
other  parties.  For  it  makes  no  difference  that  the 
accident  happened  upon  tracks  which  were  owned 
by  other  parties,  and  were  not  within  the  chartered 
limits  of  the  road  of  the  defendant  corporation 
or  of  any  road  under  its  control,  provided  that  the 
defendant  corporation  had,  with  the  consent  of 
the  owner,  the  actual  use  and  occupation  of  such 
tracks  at  time  of  the  accident.2 

And  all  the  acts  of  the  servants  or  agents  of  a 

1  Daley  v.  Boston  &  Albany  Railroad,  147   Mass.   101,   112 
(1888). 

2  Comm.  v.  Boston  &  Lowell  Railroad,  126  Mass.  61  (1878). 


LIABILITY  OF  COMMON  CARRIERS  OP  PASSENGERS.     95 

railroad  which  properly  come  within  the  scope  of 
their  employment,  are  within  the  meaning  of  these 
words.  Thus,  where  the  deceased  was  killed  by 
being  knocked  from  the  defendant's  street  car, 
upon  which  he  was  riding  as  a  passenger,  by  reason 
of  the  negligent  manner  in  which  the  driver  of  the 
car,  who  had  just  been  relieved  from  duty,  stepped 
from  the  platform  as  he  was  leaving  to  get  his 
dinner,  it  was  held  that  the  driver  while  leaving 
the  car  was  acting  within  the  scope  of  his  employ- 
ment and  was  at  that  time  engaged  in  the  com- 
pany's business.1 

"THE    LIFE    OF    A    PASSENGER." 

§  90.  When  the  Relation  of  Passenger  and  Carrier 
arises. — The  acts  necessary  to  establish  the  rela- 
tion of  passenger  and  carrier  are  the  same  under 
this  section  as  at  common  law.2  In  any  case  they 
are  rarely,  on  either  side,  of  such  a  character  as  to 
constitute  a  formal  bailment  of  the  person  by  the 
traveller,  or  a  formal  acceptance  by  the  carrier. 
As  was  said  by  Mr.  Justice  Knowlton  in  Webster 
v.  Fitchburg  Railroad  : 3  "  The  existence  of  the  re- 
lation of  passenger  and  carrier  is  commonly  to  be 
implied  from  circumstances.  These  circumstances 
must  be  such  as  to  warrant  an  implication  that  the 
one  has  offered  himself  to  be  carried  on  a  trip 
about  to  be  made,  and  that  the  other  has  accepted 

1  Comm.  v.  Brockton  Street  Railway,  143  Mass.  501  (1887). 

2  See  Young  v.  New  York,  etc.  Railroad,  171  Mass.  33,  35  (1898). 
8  161  Mass.  298  (1894). 


96  STATUTORY   TORTS   IN   MASSACHUSETTS. 

his  offer,  and  has  received  him  to  be  properly 
cared  for  until  the  trip  is  begun,  and  then  to  be 
carried  over  the  railroad."  The  "  circumstances  " 
here  referred  to  relate  mainly  to  the  time,  place  or 
position  and  manner  in  which  the  person  presents 
himself  to  be  carried  on  the  contemplated  journey ; 
the  fact  that  he  has,  or  has  not,  purchased  a  ticket 
is  at  best  nothing  more  than  a  make-weight  in  the 
determination  of  the  question.1  Has  the  person 
presented  himself,  with  a  bona  fide  intention  of 
becoming  a  passenger,  under  such  circumstances 
relative  to  time,  place,  and  manner  that  the  rail- 
road must  be  deemed  to  have  accepted  him  as  a 
passenger  ?  This  is  the  test  question.2 

Under  this  section  of  the  statute,  it  has  been 
held,  relative  to  place,  that  a  person  who  was  killed 
while  walking  toward  a  railroad  station  with  the 
intention  of  buying  a  ticket  and  taking  a  train 
after  he  reached  there,  was  not  at  the  time  in  such 
a  place  as  to  become  a  passenger.8  But  a  person 
who  has  mounted  the  platform  on  his  way  into  a 
car  of  a  train  which  was  at  rest  at  the  station,  has 
gone  far  enough,  so  far  as  his  position  is  concerned, 
to  become  a  passenger.4 

And  relative  to  manner,  it  has  been  held  that  a 

1  Inness  v.  Boston,  etc.  Railroad,  168  Mass.  433  (1897). 

2  See  Webster  v.  Fitchburg  Railroad,  161  Mass.  298  (1894). 
The  person  must  come  to  the  station  a  reasonable  time  before 

the  departure  of  the  train  by  which  he  is  to  travel,  to  satisfy  the 
condition  relative  to  time.  Harris  v.  Stevens,  31  Vt.  79. 

8  June  v.  Boston  &  Albany  Railroad,  153  Mass.  79  (1891). 

4  Inness  v.  Boston,  etc.  Railroad,  168  Mass.  433  (1897). 


LIABILITY  OF  COMMON  CARRIERS  OF  PASSENGERS.     97 

person  does  not  present  himself  in  such  a  manner 
as  to  become  a  passenger  who  comes  upon  the 
premises  of  the  railroad  running  rapidly  in  order 
to  catch  his  train,  and  giving  so  little  heed  to  his 
own  safety  that  lie  is  struck  and  killed  by  another 
train.1  So  also  a  person  who  jumps  upon  a  train 
after  it  has  started  does  not  offer  himself  to  the 
carrier  in  a  proper  manner,  and  does  not,  conse- 
quently, become  a  passenger,  at  least  until  he  has 
passed  the  danger  of  getting  aboard  the  car  and 
has  put  himself  in  the  proper  place  for  the  carriage 
of  passengers.2 

§  91.  The  Payment  of  Fare. — If  a  person  in 
other  respects  comes  within  the  definition  of  a 
passenger,  it  is  not  material  whether  he  was,  when 
killed,  travelling  gratuitously  or  had  paid  for  his 
passage  :  the  statute  makes  no  distinction  between 
gratuitous  and  paying  passengers.3  And,  further, 
if  he  is  a  paying  traveller,  it  is  not  material  whether 
the  payment  has  been  made  in  the  form  of  money, 
or  in  some  other  form.  Therefore  the  fact  alone 
that  a  person  pays  for  his  ticket,  in  whole  or  in 
part,  by  services  rendered  to  the  defendant  corpora- 
tion does  not  prevent  him  from  acquiring  the  rights 
of  a  passenger  under  this  section.4  Thus  where 
the  deceased,  under  an  agreement  with  the  de- 

1  Webster  v.  Fitchburg  Railroad,  161  Mass.  298  (1894).     Com- 
pare Young  v.  New  York,  etc.  Railroad,  171  Mass.  33  (1898). 

2  Merrill  v.  Eastern  Railroad,  139  Mass.  238  (1885). 

8  Littlejohn  v.  Fitchburg  Railroad,  148  Mass.  478,  484  (1889). 
4  Comm.  v.  Vermont  &  Massachusetts  Railroad,  108  Mass.  7 
(1871).     Doyle  v.  Fitchburg  Railroad,  162  Mass.  66,  70  (1894). 

7 


98  STATUTORY  TORTS   IN  MASSACHUSETTS. 

fendant  corporation,  paid  in  part  for  his  transporta- 
tion over  its  road  by  supplying  the  passengers 
with  ice  water,  it  was  held  that  his  relation  to  the 
defendant  was  nevertheless  that  of  a  passenger.1 

While  an  attempt  to  evade  the  payment  of  fare 
would  doubtless  defeat  a  person's  claim  to  the  rights 
of  a  passenger  under  this  section  of  the  statute,  yet 
if,  after  having  become  a  passenger,  he  leaves  the 
train  at  a  station  without  having  surrendered  his 
ticket  or  paid  his  fare,  provided  he  has  had  no 
opportunity  to  do  either,  that  fact  will  not  affect 
his  status  as  a  passenger.2 

§  92.  The  Termination  of  the  Relation  by  the  Act 
of  the  Passenger.  —  After  the  relation  of  carrier  and 
passenger  has  become  fully  established  between 
the  railroad  and  the  traveller,  the  latter  may  at 
any  time  terminate  it  by  his  own  act,  and  so  debar 
himself  from  the  rights  which  that  relation  gives 
to  him  under  this  section  of  the  statute.  If  he 
voluntarily  leaves  "  the  train  at  a  place  and  time 
when  and  where  the  corporation  could  not  antici- 
pate that  he  would  leave  it,  and  when  and  where 
the  corporation  was  under  no  obligation  to  see 
that  he  had  an  opportunity  to  leave  its  roadway 
in  safety  after  leaving  the  train,"  he  ceases  to  be 
a  passenger.  This  rule  is  founded  upon  the  law 
of  negligence.  A  railroad  corporation  owes  to  its 

1  Comm.  v.  Vermont  &  Massachusetts  Eailroad,  108  Mass.  7 
(1871). 

2  McKimble  v.  Boston  &  Maine  Railroad,  139  Mass.  542,  549 
(1885). 


LIABILITY  OF  COMMON  CARRIERS  OF   PASSENGERS.     99 

passengers  no  duty  to  protect  them  against  the 
consequences  of  their  own  negligent  acts ;  such 
acts  therefore  operate  as  a  severance  of  the  rela- 
tion. Thus  a  person  ceases  to  be  a  passenger  by 
leaving  the  train  while  it  is  in  motion,  even  though 
it  is  moving  very  slowly  and  is  about  to  stop  at  the 
station  where  he  was  to  get  off ;  and  the  fact  that 
the  car  in  which  he  was  riding  had  passed  the 
platform  of  the  depot  does  not  alter  this  result.1 
And  so  where  the  deceased  left  the  train  a  short 
distance  from  the  station  to  which  he  was  going, 
at  a  spot  where  it  had  stopped  to  await  the  pass- 
ing of  another  train,  the  station  not  having  been 
called  nor  any  invitation  to  alight  having  been 
given,  it  was  held  that  he  had  by  so  doing  severed 
his  relation  as  passenger  with  the  defendant  rail- 
road.2 But  the  relation  is  not  terminated,  it  has 
been  held,  by  getting  off  from  the  train,  after  it 
has  stopped  at  the  station,  on  the  wrong  side  of  the 
car,  if,  by  reason  of  the  negligence  of  the  defendant 
railroad,  there  was  no  gate  to  prevent  the  traveller 
from  so  doing  and  no  warning  of  the  danger  involved 
in  such  an  act  was  given.3 

§  93.  The  Termination  of  the  Relation  in  the  Usual 
Course  of  Events.  —  Unless  the  passenger  terminates 
his  relation  with  the  carrier  by  some  act  of  his  own, 
it  continues,  not  only  while  he  is  actually  in  tran- 

1  Comm.  v.  Boston  &  Maine  Railroad,  129  Mass.  500  (1880). 

2  Buckley  v.  Old  Colony  Railroad,  161  Mass.  26  (1894). 

9  McKimble  v.  Boston  &  Maine  Railroad,  141  Mass.  463,  471 
(1886). 


100         STATUTORY  TORTS   IN   MASSACHUSETTS. 

sit,  but  as  well  while  he  is  rightfully  leaving  the 
train  and  the  station.1  When,  however,  he  is  once 
off  from  the  premises  of  the  corporation  upon  the 
public  street,  and  is  moving  along  that  street 
across  the  tracks  of  the  defendant  railroad  toward 
some  other  place  than  its  station,  he  has  ceased  to 
be  a  passenger  within  the  meaning  of  this  section.2 
§  94.  The  Question  of  Due  Care.  —  This  section  of 
the  statute  does  not  in  terms  exact  due  care  from 
a  passenger,  though  expressly  requiring  it  from 
other  persons.  From  this  fact,  which  appears  also 
in  all  prior  statutes  upon  the  subject,  the  court 
was  led  to  decide  that  the  legislature  intended  to 
subject  railroad  corporations  to  the  penalty  for 
causing  the  death  of  a  passenger  without  regard  to 
the  question  whether  or  not  he  was  at  the  time  of 
the  accident  in  the  exercise  of  due  care.3  It  fol- 
lows, of  course,  that  if  the  deceased  was  when 
killed  a  passenger,  it  is  not  a  part  of  the  plaintiff's 
case  to  prove  that  he  was  in  the  exercise  of  due 
care  at  the  time ; 4  and  further  that  any  want  of 
due  care  on  his  part  is  not  a  defence,  either  to  an 
indictment 3  or  to  an  action  of  tort.5 

"OR  OF  A  PERSON  BEING  IN  THE  EXERCISE  OF  DUE 
DILIGENCE  AND  NOT  A  PASSENGER  OR  IN  THE  EMPLOY- 
MENT OF  SUCH  CORPORATION." 

1  McKimble  v.  Boston  &  Maine  Railroad,  139  Mass.  542  (1885). 

2  Allerton  v.  Boston  &  Maine  Railroad,  146  Mass.  241  (1888). 
8  Comm.  v.  Boston  &  Lowell  Railroad,  134  Mass.  211  (1883). 

*  McKimble  v.  Boston  &  Maine  Railroad,  139  Mass.  542,  549 
(1885). 

6  Merrill  v.  Eastern  Railroad,  139  Mass.  252  (1885). 


FOSTER  •ROGERi 
\ROG--  >{flo 


ABILITY  OP  COMMON  CARRIERS  OP  PASSENGERS.    101 

§  95.  The  Burden  of  Proof.  —  Under  this  pro- 
vision of  the  statute,  the  burden  of  establishing 
the  fact  of  due  diligence  rests  of  course  upon  the 
plaintiff.  Where  there  is  no  affirmative  evidence 
of  acts  of  care  on  the  part  of  the  deceased,  this 
burden  may  still  be  sustained  by  putting  in  evi- 
dence all  the  facts  and  circumstances  of  the  case  ; 
and  if  this  disclosure  of  facts  is  sufficiently  full, 
the  mere  absence  of  fault  may  be  enough  to  war- 
rant an  inference  of  due  care.1  But  if  the  deceased 
is  killed  under  such  circumstances  that  it  cannot 
be  shown  what  he  was  doing  at  the  time  of  the  ac- 
cident, and  it  does  not  appear  that  there  was  any 
neglect  on  the  part  of  the  railroad  which  might 
have  misled  him,  a  jury  will  not  be  warranted  in 
presuming  that  he  was  in  the  exercise  of  due  care.2 

1  Comm.  v.  Boston  &  Lowell  Railroad,  126  Mass.  61,  69  (1878). 
Maguire  v.  Fitchburg  Railroad,  146  Mass.  379  (1888). 

It  seems  that  a  disclosure  of  facts  which  shows  what  the  de- 
ceased was  doing  at  the  time  of  the  accident  —  that  he  was 
engaged  in  the  performance  of  his  duty  in  the  usual  manner  —  is 
sufficient  to  warrant  the  inference  of  due  care.  Maguire  v.  Fitch- 
burg  Railroad,  146  Mass.  379  (1888). 

2  Livermore  v.  Fitchburg  Railroad,  163  Mass.  132  (1895). 

For  cases  where  the  question  of  due  care  on  the  part  of  the 
deceased  is  discussed,  see  Tyler  v.  Old  Colony  Railroad,  157  Mass. 
336,  339  (1892).  Hubbard  v.  Boston  &  Albany  Railroad,  162 
Mass.  132  (1894).  Brady  v.  Old  Colony  Railroad,  162  Mass.  403 
(1894).  Wallace  r  New  York,  etc.  Railroad,  165  Mass.  236  (1896). 
Clark  v.  Boston  &  Maine  Railroad,  164  Mass.  434,  439  (1895). 
Murray  v.  Fitchburg  Railroad,  165  Mass.  448  (1896).  Tilton  v. 
Boston  &  Albany  Railroad,  169  Mass.  253  (1897).  Tnmalty  v. 
New  York,  etc.  Railroad,  170  Mass.  164  (1898).  Phelps  v.  New 
England  Railroad,  172  Mass.  98  (1898). 


102          STATUTORY  TORTS  IN   MASSACHUSETTS. 

§  96.  "  In  the  Employment  of  such  Corporation. "- 
This  provision  of  the  section  is  not  interpreted  in  a 
popular  sense.  Rather,  a  more  limited  meaning  is 
put  upon  its  words.  Therefore  those  cases  are 
held  not  to  come  within  its  meaning,  where  the 
railroad  corporation  has,  at  the  time  of  the  acci- 
dent, no  control  over  the  actions  or  time  of  the 
deceased,  although  he  may  be  in  its  service  in  some 
capacity  during  certain  other  hours  of  the  day. 
Thus  it  has  been  held  that  a  person  who  was  in 
the  service  of  the  railroad  as  clerk,  and  who  trav- 
elled back  and  forth  over  its  road  to  and  from  his 
work  on  an  employee's  ticket  which  was  given  to 
him  as  a  part  of  the  compensation  for  his  services, 
and  on  which  he  had  a  right  to  ride  after  business 
hours  for  his  own  private  purposes,  was  not  in  the 
employment  of  the  railroad  within  the  meaning  of 
this  provision  while  riding  on  this  ticket  upon  his 
own  personal  business,  after  his  hours  of  service 
were  over.1 

"  PAID  TO  THE  EXECUTOR  OR  ADMINISTRATOR." 

§  97.   The  Allegation  as  to  Administration.  —  111  the 

pleadings,  it  is  necessary  to  allege  that  administra- 
tion has  been  taken  out  in  this  Commonwealth.2 
If  the  fact  that  the  appointment  was  made  in  this 
State  can  be  reasonably  inferred  from  the  allega- 
tions of  the  pleadings,  that  is  sufficient.  Thus, 
where  it  was  alleged  that  the  deceased,  Burns, 

1  Doyle  v.  Fitchburg  Railroad,  162  Mass.  66  (1894> 

2  Comm.  v.  Sanford,  12  Gray,  174  (1858). 


LIABILITY  OP  COMMON  CARRIERS  OF  PASSENGERS.    103 

resided  and  lost  his  life  in  Boston,  and  that  A,  of 
Boston,  "  has  been  duly  appointed  and  now  is  ad- 
ministrator of  said  Burns,"  it  was  held  that  the 
reasonable  implication  was  that  the  appointment 
was  made  in  this  State,  and  that  the  indictment 
was  in  this  respect  sufficient.1 

"  FOR  THE  USE  OF  THE  WIDOW  AND  CHILDREN  OF  THE 
DECEASED." 

§  98.  A  Beneficiary  must  exist.  —  Though  penal  in 
essence,  the  secondary  object  of  proceedings  under 
this  section  is  to  secure  some  pecuniary  provision 
for  those  who  were  dependent  upon  the  deceased. 
It  is  indispensable,  therefore,  that  those  entitled 
to  the  benefit  of  the  fine  that  may  be  imposed 
should  appear  to  exist.  Hence  it  has  been  held 
that  the  indictment  should  allege  as  a  distinct 
affirmative  averment  that  the  deceased  has  left  a 
widow  and  child,  or  one  of  them,  as  the  case  may 
be,  or,  if  there  is  neither  widow  nor  child,  then 
next  of  kin,  for  whose  benefit  the  executor  or  ad- 
ministrator is  acting.2  It  is  not  necessary,  how- 
ever, to  state  in  the  indictment  the  names  of  the 
parties  to  be  benefited  by  the  fine  imposed ;  it  is 
enough  if  the  name  of  the  executor  or  administra- 

1  Comra.  v.  East  Boston  Ferry  Company,  13  Allen,  589  (1866). 

2  Comm.  v.  Eastern  Railroad  Company,  5  Gray,  473  (1855). 
Comm.  v.  Boston  &  Albany  Railroad,  121  Mass.  36  (1876). 

An  averment  that  the  railroad  is  liable  to  the  fine  "  to  the  use 
of  A,  who  has  been  duly  appointed  administrator  of  the  said 
deceased,  and  the  heirs-at-law  of  said  deceased,"  has  been  held, 
therefore,  not  to  be  sufficient.  Comm.  v.  Eastern  Railroad  Com- 
pany, 5  Gray,  473  (1855). 


104          STATUTORY  TORTS   IN   MASSACHUSETTS. 

tor  is   set  out  and  the  averment   made   that  the 
deceased  has  left  persons  entitled  to  the  benefit.1 

"  WHILE  WALKING  OR  BEING  UPON  ITS  ROAD  CON- 
TRARY TO  LAW." 

§  99.  Trespassers. — The  provisions  of  this  sec- 
tion have  not  enlarged  the  duty  that  the  common 
law  has  always  exacted  in  favor  of  trespassers. 
Under  the  section,  therefore,  the  rule  is  that  if 
the  deceased  was  trespassing  upon  the  tracks  of 
the  corporation  at  the  time  of  the  accident  which 
resulted  in  his  death,  there  can  be  no  recovery, 
unless  it  appears  that  the  corporation  was  guilty 
of  reckless  and  wilful  misconduct  toward  him.2 
And  in  order  to  make  the  rule  applicable  it  is 
not  necessary  to  show  that  the  deceased  was 
actually  trespassing  upon  the  road-bed  itself ;  it 
applies  as  well  where  he  was  when  killed  trespass- 
ing anywhere  within  the  location  of  the  railroad.3 
It  seems,  furthermore,  that  this  same  rule  applies 
with  equal  force  and  effect  where  the  deceased 
was  upon  the  premises  of  the  railroad  as  a  mere 
licensee.4 

1  Comm.  v.Boston  &  Worcester  Eailroad,  11  Cush.  512  (1853). 

2  McCreary  v.  Boston  &  Maine  Railroad,  153  Mass.  300  (1891) ; 
S.  C.  156  Mass.  316  (1892). 

A  person  who  is  killed  at  a  railroad  crossing  over  a  way  which 
has  not  been  established  either  by  due  legal  proceedings  or  by 
prescription  is  a  trespasser  within  the  meaning  of  this  rule. 
McCreary  v.  Boston  &  Maine  Railroad,  153  Mass.  300  (1891). 

3  Dillon  v.  Connecticut  River  Railroad,  154  Mass.  478  (1891). 
*  Sullivan  o.  Boston  &  Albany  Railroad,  156  Mass.  378  (1892). 
It  need  not  be  alleged  in  the  indictment  that  the  deceased  was 


LIABILITY  OP  COMMON  CARRIERS  OF  PASSENGERS.    105 

"  TO    BE    ASSESSED   WITH   REFERENCE    TO   THE   DEGREE 
OF    CULPABILITY." 

§.100.  Negligence  on  the  Part  of  the  Railroad  in- 
dispensable. —  The  amount  of  the  recovery  in  pro- 
ceedings under  this  section  is  to  be  determined, 
not  according  to  the  loss  sustained  by  the  widow, 
children,  or  next  of  kin  of  the  deceased,  but  accord- 
ing to  the  degree  of  blame  that  attaches  to  the 
railroad.  It  is  essential,  therefore,  that  some  de- 
gree of  negligence  on  its  part,  or  on  the  part  of  its 
servants  or  agents,  should  appear  in  order  that 
the  action  or  indictment  may  be  sustained.  As 
was  said  by  Mr.  Justice  Holmes  in  Littlejohn  v. 
Fitchburg  Railroad,1  in  reference  to  this  provision : 
"  This  language  imports  that  there  must  be  some 
degree  of  culpability  on  the  part  of  the  corporation 
or  of  its  servants,  and  is  not  satisfied  by  show- 
ing that  the  corporation  assumed  a  contractual  or 
quasi  contractual  responsibility  for  third  persons 
who  were  not  its  servants."  It  seems,  consequently, 
that  if  a  person  is  killed  by  reason  of  a  defect  in 
some  matter  in  construction  which  was  the  work 
of  private  parties,  which  defect  was  not  known  to 
the  railroad  and  could  not  have  been  discovered 
by  the  exercise  of  any  degree  of  care,  there  can  be 
no  recovery  under  this  section,  since  in  such  case 
there  is  no  degree  of  culpability  on  the  part  of  the 

not  at  the  time  of  the  accident  walking  or  being  upon  the  defend- 
ant's road  contrary  to  law,  and  the  reasonable  regulations  of  the 
corporation.     Comm.  v.  Fitchburg  Railroad,  10  Allen,  189  (1865). 
1  148  Mass.  478,  482  (1889). 


106          STATUTOEY  TORTS   IN   MASSACHUSETTS. 

railroad  or  its  servants.  But  if  the  railroad  knows, 
or  ought  to  have  known,  that  a  place  in  its  road- 
bed was  in  a  dangerous  condition,  carrying  pas- 
sengers into  that  place  under  those  circumstances 
is  such  negligence  as  will  satisfy  the  requirements 
of  this  clause,  although  the  railroad  did  not  create 
the  dangerous  condition,  and  had  not  the  right  to 
remedy  it.1 

"  AND  2  IF  AN  EMPLOYEE  OF  SUCH  CORPORATION  BEING 
IN  THE  EXERCISE  OF  DUE  CARE  IS  KILLED  UNDER  SUCH 
CIRCUMSTANCES  AS  WOULD  HAVE  ENTITLED  THE  DECEASED 
TO  MAINTAIN  AN  ACTION  FOR  DAMAGES  AGAINST  SUCH 
CORPORATION,  IF  DEATH  HAD  NOT  RESULTED." 

§  101.  The  Effect  of  the  Amendment.  —  The  scope 
of  this  amendment  is  limited.  It  alters  the  rules 
of  common  law  which  are  applicable  to  cases  of  this 
class  only  so  far  as  to  give  to  the  executor  or  ad- 
ministrator of  the  deceased  employee  the  right  to 
maintain  an  action  against  the  corporation  for  caus- 
ing his  death,  if  the  employee  himself,  had  he  sur- 
vived, could  have  maintained  an  action  on  the  same 
facts  —  and  not  otherwise.  It  follows,  therefore, 
that  the  doctrine  of  common  employment  affords 
a  .perfect  defence  to  an  action  based  upon  this 
amendment;  and  the  Employers'  Liability  Act3 
cannot  be  invoked  to  avoid  such  defence.4  Like- 

1  Littlejohn  v.  Fitchburg  Railroad,  148  Mass.  478  (1889). 

2  Statute  1883,  ch.  243,  amending  Pub.  Sts.  121,  s.  212. 

3  Statute  1887,  ch.  270. 

*  Dacey  v.  Old  Colony  Railroad,  153  Mass.  112,  117  (1891). 
Clark  v.  New  York,  etc.  Railroad,  160  Mass.  39  (1893).  And  see 
Peaslee  v.  Fitchburg  Railroad,  152  Mass.  155  (1890). 


LIABILITY  OP  COMMON  CARRIERS  OF  PASSENGERS.    107 

wise,  the  rule  that  an  employee  "  assumes  the 
obvious  risks  arising  from  the  nature  of  the  em- 
ployment, from  the  manner  in  which  the  business 
is  carried  on,  and  from  the  condition  of  the  ways, 
works,  and  machinery,  if  he  is  of  sufficient  capacity 
to  understand  and  appreciate  them,"  applies  to 
cases  under  this  amendment  with  the  same  force 
and  effect  as  at  common  law.1 

PUBLIC  STATUTES,  CHAPTER  112,  SECTION  213.  If 
a  person  is  injured  in  his  person  or  property  by  colli- 
sion with  the  engines  or  cars  of  a  railroad  corporation 
at  a  crossing  such  as  is  described  in  section  one  hun- 
dred and  sixty-three,2  and  it  appears  that  the  corpo- 
ration neglected  to  give  the  signals  required  by  said 

1  Goodes  v.  Boston  &  Albany  Railroad,  162  Mass.  287  (1894). 

For  suggestions  as  to  form  of  indictment  under  this  section,  see 
Comm.  v.  Boston  &  Worcester  Railroad  Company,  11  Cush.  512 
(1853).  Comm.  v.  Fitchburg  Railroad,  120  Mass.  372  (1876). 
Comm.  v.  Boston  &  Maine  Railroad,  133  Mass.  383  (1882)  ;  and  see 
Fuller  v.  Boston  &  Albany  Railroad,  133  Mass.  491  (1882). 

The  recovery  of  a  judgment  for  the  conscious  suffering  in  an 
action  based  upon  the  Employers'  Liability  Act  will  not  bar  an  ac- 
tion for  the  death  based  upon  this  statute.  Clare  v.  New  York  & 
New  England  Railroad,  172  Mass.  211  (1898). 

'2  Section  163,  as  amended  by  the  Acts  of  1890,  ch.  173,  s.  1. 
Every  railroad  corporation  shall  cause  a  bell  of  at  least  thirty-five 
pounds  in  weight,  and  a  steam-whistle,  to  be  placed  on  each  loco- 
motive engine  passing  upon  its  road ;  and  such  bell  shall  be  rung 
or  at  least  three  separate  and  distinct  blasts  of  such  whistle  sounded 
at  the  distance  of  at  least  eighty  rods  from  the  place  where  the  road 
crosses,  upon  the  same  level,  any  highway,  town  way,  or  travelled 
place  over  which  a  sign-board  is  required  to  be  maintained  as  pro- 
vi.lod  in  the  two  following  sections;  and  such  bell  shall  be  rung  or 
such  whistle  sounded  continuously  or  alternately,  until  the  engine 
has  crossed  such  way  or  travelled  place.  • 


108          STATUTORY   TORTS   IN   MASSACHUSETTS. 

section,  and  that  such  neglect  contributed  to  the  in- 
jury, the  corporation  shall  be  liable  for  all  damages 
caused  by  the  collision,  or  to  a  fine  recoverable  by 
indictment  as  provided  in  the  preceding  section,  or, 
in  case  the  life  of  a  person  so  injured  is  lost,  to  dam- 
ages recoverable  in  an  action  of  tort,  as  provided  in 
said  section,  unless  it  is  shown  that,  in  addition  to  a 
mere  want  of  ordinary  care,  the  person  injured  or  the 
person  having  charge  of  his  person  or  property  was, 
at  the  time  of  the  collision,  guilty  of  gross  or  wilful 
negligence,  or  was  acting  in  violation  of  the  law,  and 
that  such  gross  or  wilful  negligence  or  unlawful  act 
contributed  to  the  injury. 

§  102.  Distinction  between  Proceedings  under  Sec- 
tion 212  and  Section  213.  —  In  one  direction  the 
scope  of  this  section  is  broader  than  that  of  section 
two  hundred  and  twelve,  but  in  one  direction  only. 
Proceedings  under  this  section  are  not  confined,  as 
they  are  under  section  two  hundred  and  twelve,  to 
accidents  resulting  in  death  ;  they  may  be  employed 
also  where  personal  injury  alone  results  from  the 
collision.1 

Under  section  two  hundred  and  twelve  proceed- 
ings may  be  supported  by  proof  of  any  facts,  prop- 

1  "  It  may  be  open  to  question  whether  the  remedy  by  indictment 
extends  to  cases  of  collision  not  attended  by  loss  of  life."  Dictum 
by  Mr.  Justice  C.  Allen  in  Comm.  v.  Boston  &  Maine  Eailroad,  133 
Mass.  383  (1882).  In  an  action  under  this  section  for  causing 
death,  the  plaintiff  cannot  recover  damages  for  conscious  suffering. 
Lamoureux  v.  New  York,  etc.  Kailroad,  169  Mass.  338,  point  4 
(1897). 


LIABILITY  OF  COMMON  CARRIERS  OF  PASSENGERS.    109 

erly  alleged,  which  show  that  the  collision  at  the 
crossing  was  due  to  negligence  on  the  part  of  the 
corporation  or  to  gross  negligence  on  the  part  of 
its  servants  or  agents,  even  though  the  bell  was 
rung  and  the  whistle  sounded  continuously  for 
eighty  rods  before  the  crossing  was  reached  , *  and 
if  an  omission  to  ring  the  bell  or  to  sound  the 
whistle  are  the  facts  relied  on  to  fix  the  liability, 
they  are  treated  simply  as  evidence  of  negligence.2 
But,  on  the  other  hand,  a  plaintiff  can  maintain 
his  proceedings  under  section  two  hundred  and 
thirteen  only  by  averring  and  proving  the  omission 
to  ring  the  bell  and  to  sound  the  whistle  as  pro- 
vided in  section  one  hundred  and  sixty-three ; 
and  such  omission,  when  established,  fixes  the 
liability  of  the  railroad  irrespective  of  the  question 
of  negligence.3 

And  again,  with  reference  to  the  question  of  duo 
care,  a  distinction  between  the  two  sections  is  to 
be  noted.  Under  two  hundred  and  twelve  the 
burden  rests  upon  the  plaintiff  to  show  that  the 
deceased  was  in  the  exercise  of  due  care  at  the 
time  of  the  collision  ;4  under  two  hundred  and  thir- 
teen, due  care  is  not  an  element  in  the  plaintiff's 

1  The  statutory  signals  are  not  necessarily  a  sufficient  precau- 
tion.   Bradley    v.  Boston  &   Maine   Railroad,  2  Cush.   539,   543 
(1848). 

2  See  §  86,  ante. 

8  See  Comm.  v.  Boston  &  Maine  Railroad,  133  Mass.  383,  388 
(1882),  also  §  105,  post.  But  see  Comm.  v.  Fitchburg  Railroad,  120 
Mass.  372  (1876). 

*  Livermore  v.  Fitchburg  Railroad,  163  Mass.  132  (1895). 


110         STATUTORY   TORTS    IN    MASSACHUSETTS. 

case,  and  therefore  no  mere  want  of  ordinary  care 
on  his  part  at  that  time  will  defeat  a  recovery.1 

§  103.  What  the  Plaintiff  must  allege.  — In  order 
to  maintain  proceedings  under  this  section,  the 
plaintiff  must,  of  course,  set  out  in  his  pleadings 
all  the  circumstances  required  by  the  statute  to  fix 
the  liability,  —  he  must  aver  that  the  collision  by 
which  he  was  injured  occurred  at  a  crossing  of  a 
highway  at  grade  ;  that  the  railroad  neglected  to 
give  the  signals  required  by  the  statutes  at  such 
crossings,  and  that  such  neglect  contributed  to 
the  injury.2 

"AT  A  CROSSING  SUCH  AS  IS  DESCRIBED  IN  SECTION 
ONE  HUNDRED  AND  SIXTY-THREE." 

§  104.  The  Effect  of  the  Clause.  —  The  section, 
by  reason  of  this  provision,  is  limited  in  its  ap- 
plication to  collisions  that  occur  at  crossings  at 
grade  over  ways  open  to  public  use.  Therefore, 
an  accident  happening  at  a  private  crossing  made 
for,  and  used  by,  the  employees  of  the  railroad, 
does  not,  it  seems,  come  within  its  terms.3  The 

1  Sullivan  v.  New  York,   etc.   Railroad,  154   Mass.   524,   527 
(1891).     Walsh  v.  Boston  &  Maine  Railroad,  171  Mass.  52  (1898). 

For  actions  at  common  law  where  the  plaintiff  was  injured  by 
reason  of  a  failure  of  the  railroad  to  give  the  statutory  signals, 
there  being,  however,  no  actual  collision  in  consequence  of  the 
omission,  see  Norton  v.  Eastern  Railroad  Company,  113  Mass. 
366  (1873).  Prescott  v.  Same,  113  Mass.  370,  n.  (1873).  Pollock 
v.  Same,  124  Mass.  158  (1878). 

2  Wright  v.  Boston  &  Maine  Railroad,  129  Mass.  440,443  (1880). 
Allerton  v.  Same,  146  Mass.  241,  247  (1888). 

8  June  v.  Boston  &  Albany  Railroad,  153  Mass.  79,  82  (1891). 


LIABILITY  OP  COMMON  CARRIERS  OF  PASSENGERS.    Ill 

burden  is  upon  the  plaintiff,  consequently,  to  show- 
that  the  crossing  where  the  collision  happened 
was  a  crossing  at  grade  over  a  highway,  estab- 
lished by  due  legal  proceedings,  by  prescription,1 
or  otherwise;  or  over  a  town  way2  or  "travelled 
place."  And  in  order  to  bring  his  case  within  this 
latter  phrase,  the  plaintiff  is  not  required  to  show 
that  the  way  had  been  so  laid  out  and  established 
as  to  render  the  town  liable  for  injuries  resulting 
from  defects  therein ;  but  only  that  it  was  an 
open  and  travelled  way  over  which  a  sign-board 
had  been,  or  ought  to  have  been,  erected.3 

1  For  cases  where  the  highway  was  established  by  prescription, 
see  Johanson  v.  Boston  &  Maine  Railroad,  153  Mass.  57  (1891). 
Bagley  v.  New  York,  etc.  Railroad,  165  Mass.  160  (1896).    For 
cases  where  the  evidence  was   held   not   sufficient  to  establish  a 
highway  by  prescription,  see  McCreary  v.  Boston  &  Maine  Rail- 
road, 153  Mass.  300  (1891).     Sprow  v.  Boston  &  Albany  Railroad, 
163  Mass.  330  (1895). 

In  1892  an  act  was  passed  to  prevent  the  acquisition  of  rights 
of  way  across  railroads  by  prescription.  St.  1892,  ch.  275.  This 
does  not  affect  existing  rights. 

2  For  a  case  not  within  the  section  by  reason  of  the  discontinuance 
of  the  town  way,  see  Coakley  v.  Boston  &  Maine  Railroad,  159 
Mass.  32   (1893).     For  a   case  where  the  crossing  at  which   the 
accident  happened  was  held  not  to  be  such  as  is  described  in  section 
1 63  of  the   statute,  see   Stewart  v.  JJew  York,  etc.  Railroad,  1 70 
Mass.  430  (1898). 

8  Whittaker  v.  Boston  &  Maine  Railroad,  7  Gray,  98  (1856). 

A  way  is  not  a  "  travelled  place  "  within  the  meaning  of  sec- 
tion 163,  "  unless  the  railroad  corporation  had  been  requested 
in  writing  by  the  selectmen,  or  required  by  the  County  Commis- 
sioners, to  erect  and  maintain  boards  at  the  crossing."  Coakley  p. 
Boston  &  Maine  Railroad,  159  Mass.  32,  38  (1893). 

The  provisions  of  this  section  apply  also  to  accidents  happening 


112          STATUTORY  TORTS  IN   MASSACHUSETTS. 

"  AND  IT  APPEARS  THAT  THE  CORPORATION   NEGLECTED 
TO  GIVE  THE  SIGNALS  REQUIRED  BY  SAID  SECTION." 

§  105.  The  Omission  of  the  Signals.  —  The  pur- 
pose of  this  section  of  the  statute,  in  part  at  least, 
is  to  enforce  the  duty,  which  is  imposed  by  a 
prior  section,1  of  ringing  the  bell  and  sounding 
the  whistle  at  crossings  of  public  ways  at  grade. 
Its  enactment  has,  therefore,  served  to  emphasize 
that  duty  and  has  made  it  an  absolute  obligation, 
entirely  independent  of  the  question  of  negligence. 
If,  consequently,  from  any  cause  whatever,  whether 
through  negligence  or  otherwise,  there  is  a  failure 
to  give  the  required  warnings  on  approaching  a 
grade  crossing,  such  failure  fixes  the  liability  of 
the  corporation  under  this  section,  provided  it  can 
.  be  shown  to  have  contributed  to  the  injury.  The 
corporation  must,  then,  at  its  peril  see  that  the 
required  signals  are  given.2 

§  106.  The  Evidence  of  the  Omission  of  the  Sig- 
nals. —  The  burden  of  establishing  the  fact  that 
the  bell  was  not  rung  nor  the  whistle  sounded 
in  accordance  with  the  statutory  requirements 
rests  of  course  upon  the  plaintiff.  Usually  it  is  a 
burden  that  he  can  sustain  only  by  the  testimony  of 
witnesses  who  can  simply  swear  that  they  did  not 

at  a  crossing  established  by  estoppel.     Hanks  v.  Boston  &  Albany 
Railroad,  147  Mass.  495  (1888). 

1  Section  163. 

2  Comm.  v.  Boston  &  Maine  Railroad,  133  Mass.  383,  388  (1882). 
Bay  ley  v.  Eastern  Railroad,  125  Mass.  62  (1878).     Livermore  v. 
Fitchburg  Railroad,  163  Mass.  132  (1895).     Marden  v.  Boston  & 
Albany  Railroad,  159  Mass.  393  (1893). 


LIABILITY  OP  COMMON  CARRIERS  OP  PASSENGERS.    113 

hear  the  bell  or  the  whistle.  Such  testimony, 
standing  by  itself,  has  but  little  weight.  It  must 
derive  its  value  largely  from  the  surrounding  cir- 
cumstances, such  as  the  situation  and  occupation 
of  the  witnesses  at  the  time.  Upon  this  point  Mr. 
Justice  Knowlton,  in  Menard  v.  Boston  &  Maine 
Railroad,1  has  said  :  "  Ordinarily,  all  that  a  witness 
can  say,  in  such  a  case,  when  called  to  prove  that  a 
bell  was  not  rung,  is  that  he  did  not  hear  it.  Such 
a  statement,  with  no  accompanying  facts,  is  merely 
negative,  and  of  no  value  as  evidence.  But  at- 
tending circumstances  may  be  shown  which  make 
the  statement  strong  affirmative  evidence.  It  may 
appear  that  all  the  attention  of  which  the  witness 
was  capable  was  concentrated  on  the  effort  to 
ascertain  whether  the  bell  was  rung,  and  his  fail- 
ure to  hear  it  could  only  have  been  because  it  made 
no  sound.  A  witness  may  be  in  any  conceivable 
attitude  of  attention  or  inattention,  which  wrill  give 
his  evidence  value,  or  leave  it  with  little  or  no 
weight."  2 

And  upon  this  issue  evidence  of  a  habit  of 
giving,  or  of  omitting,  the  signals  is  not  competent. 
Thus  the  plaintiff  cannot  put  in  evidence  the  fact 
that  the  railroad  often  or  usually  omitted  to  give 
the  required  warnings  at  the  crossing  in  question, 

1  150  Mass.  386  (1890). 

2  Hubbard  v.  Boston  &  Albany  Railroad,  159  Mass.  320  (1893). 
Lamoureux  ».  New  York,  etc.  Railroad,  169  Mass.  338,  point  1, 
(1897).     Walsh  v.  Boston  &  Maine  Railroad,  171  Mass.  52  (1898), 
accord. 


114          STATUTORY  TORTS   IN   MASSACHUSETTS. 

and  to  ask  the  jury  to  infer  therefrom  that  they 
were  not  given  at  the  time  of  the  accident.  Like- 
wise, it  is  not  permissible  for  the  railroad  to  show 
that  its  servants  usually  rang  the  bell  and  sounded 
the  whistle  at  that  particular  crossing,  and  to  ask 
the  jury  to  conclude  therefrom  that  fy)tf  were  done 
at  the  time  of  the  accident.1 

' '  AND  THAT  SUCH  NEGLECT  CONTRIBUTED  TO  THE 
INJURY." 

§  107.  The  Proof  under  this  Provision.  —  It  is  a 
necessary  part  of  the  plaintiff's  case  that  he  should 
both  allege  and  prove  that  the  failure  of  the  rail- 
road to  give  the  required  signals  contributed  to 
the  injury.  He  is  not  obliged,  however,  to  estab- 
lish this  connection  by  means  of  direct  evidence 
only  ;  indeed,  to  do  so  becomes  impossible  in  those 
cases  where  the  accident  results  in  instant  death, 
since  the  only  strictly  direct  testimony  upon  the 
point  would  have  to  come  from  the  person  killed. 
In  the  absence  of  such  direct  evidence,  the  con- 
nection may  properly  be  inferred  from  the  attend- 
ing facts  and  circumstances.  Thus  where  the 

1  Tuttle  v.  Fitchburg  Railroad,  152  Mass.  42  (1890). 

For  cases  where  the  testimony  of  witnesses  to  the  effect  that 
they  did  not  hear  the  required  signals  was  held  sufficient  to  war- 
rant a  finding  that  no  signals  were  given,  see  Copley  v.  New  Haveii 
&  Northampton  Company,  136  Mass.  6  (1883).  Menard  v.  Boston  & 
Maine  Railroad,  150  Mass.  386  (1890).  Johanson  v.  Boston  &  Maine 
Railroad,  153  Mass.  57  (1891).  In  Elkins  v.  Boston  &  Albany 
Railroad,  115  Mass.  190  (1874),  the  jury  found  that  the  signals 
were  not  given,  but  the  court  set  aside  the  verdict  as  against  the 
weight  of  evidence. 


LIABILITY  OP  COMMON  CARRIERS  OF  PASSENGERS.   115 

deceased  was  instantly  killed  by  the  collision,  it 
was  held  that  the  fact  that  the  omission  of  the 
signals  contributed  to  the  accident  might  properly 
be  inferred  from  evidence  tending  to  show  that  the 
deceased  was  awake  and  capable  of  hearing  the 
warnings,  if  they  had  been  given  ;  that  he  knew 
the  location  of  the  crossing  where  the  collision 
occurred  ;  and  that  he  was  driving  at  a  proper  rate 
of  speed  at  the  time.1 

' '  UNLESS  IT  is  SHOWN  THAT,  IN  ADDITION  TO  A  MERE 

WANT  OF  ORDINARY  CARE,  THE  PERSON  INJURED  OR  THE 
PERSON  HAVING  CHARGE  OF  HIS  PERSON  OR  PROPERTY 
WAS,  AT  THE  TIME  OF  THE  COLLISION,  GUILTY  OF  GROSS 
OR  WILFUL  NEGLIGENCE." 

§  108.  The  Effect  of  the  Clause.  —  This  provision 
opens  the  way  to  a  possible  defence  to  actions 
based  upon  this  section.  Therefore,  being  matter 
in  defence  only,  the  burden  of  showing  gross  or 
wilful  negligence  on  the  part  of  the  person  injured 
rests  upon  the  railroad.  It  is,  moreover,  a  burden 

1  Doyle  v.  Boston  &  Albany  Railroad,  145  Mass.  386  (1888). 
Lamoureux  v.  New  York,  etc.  Railroad,  169  Mass.  338,  point  2 
(1897). 

Upon  this  subject  the  court  said  in  a  late  case  :  "  It  is  to  be  pre- 
sumed that  persons  approaching  a  place  of  danger,  like  a  railroad 
crossing,  ordinarily  will  pay  some  attention  to  signals  given  for  the 
purpose  of  warning  them  of  approaching  trains.  The  requirement 
that  signals  shall  be  given  is  based  on  this  assumption.  It  is  not  an 
unreasonable  inference,  therefore,  that,  if  there  is  an  accident  at  a 
railroad  crossing,  and  the  bell  was  not  rung  nor  the  whistle  blown, 
that  fact,  in  the  absence  of  evidence  to  the  contrary,  had  something 
to  do  with  it."  Walsh  v.  Boston  &  Maine  Railroad,  171  Mass.  52, 
58  (1898). 


116          STATUTORY  TORTS  IN   MASSACHUSETTS. 

that  cannot  be  sustained  by  showing  merely  a 
want  of  ordinary  care ; L  by  the  very  terms  of  this 
clause  a  clear  distinction  is  drawn  between  ordi- 
nary negligence  and  gross  or  wilful  negligence. 
This  latter  phrase  means  something  different  from 
the  former,  —  a  something,  however,  that  is  no  more 
capable  of  being  denned  in  fixed  terms  than  is  the 
idea  conveyed  by  the  former.  It  is  only  possible 
to  say  that  in  order  to  avail  itself  of  the  means  of 
escape  here  afforded,  the  railroad  must  show  some- 
thing more  in  point  of  degree  than  a  mere  lack  of 
due  care.2 

II.  Proprietors  of  Steamboats,  Stage-coaches,  etc. 

PUBLIC  STATUTES,  CHAPTER  73,  SECTION  6.  If  the 
life  of  a  passenger  is  lost  by  reason  of  the  negligence 
or  carelessness  of  the  proprietor  or  proprietors  of  a 
steamboat  or  stage-coach,  or  of  common  carriers  of 
passengers,  or  by  the  unfitness  or  gross  negligence  or 
carelessness  of  their  servants  or  agents,  such  proprietor 
or  proprietors  and  common  carriers  shall  be  liable  in 

1  See  Sullivan  v.  New  York,  etc.  Railroad,  154  Mass.  524,  527 
(1891).     Copley  v.   New   Haven   &  Northampton   Company,   136 
Mass.  6,  10  (1883). 

2  Debbins  v.  Old  Colony  Railroad,  154  Mass.  402,  404  (1891). 
Copley  v.  New  Haven  &  Northampton  Company,  136  Mass.  6,  10 
(1883). 

For  a  case  where  on  the  facts  the  plaintiff  was  held  to  be  guilty 
of  gross  or  wilful  negligence  within  this  clause,  see  Debbins  v. 
Old  Colony  Railroad,  154  Mass.  402  (1891).  And  see  also  Manley 
v.  Boston  &  Maine  Railroad,  159  Mass.  493  (1893).  Granger  ». 
Boston  &  Albany  Railroad,  146  Mass.  276  (1888). 


LIABILITY  OF  COMMON  CARRIERS  OF  PASSENGERS,    117 

damages  not  exceeding  five  thousand  nor  less  than 
five  hundred  dollars,  to  be  assessed  with  reference  to 
the  degree  of  culpability  of  the  proprietor  or  pro- 
prietors or  common  carriers  liable,  or  of  their  servants 
or  agents,  and  recovered  in  an  action  of  tort,  com- 
menced within  one  year  from  the  injury  causing  the 
death,  by  the  executor  or  administrator  of  the  de- 
ceased person,  for  the  use  of  the  widow  and  children 
of  the  deceased  iu  equal  moieties,  or,  if  there  are  no 
children,  to  the  use  of  the  widow,  or,  if  no  widow,  to 
the  use  of  the  next  of  kin. 

§  109.  The  General  Scope  of  the  Section.  From 
an  examination  of  the  history  and  course  of  legis- 
lation upon  the  subject,  the  court  has  been  led  to 
hold  that  the  provisions  of  this  section  of  the 
statute  do  not  apply  to  street-railway  companies.1 
The  same  line  of  reasoning  and  the  same  conclu- 
sion apply  with  equal  force  to  steam-railroad 
corporations.2 

1  Holland  v.  Lynn  &  Boston  Railroad,  144  Mass.  425,  427 
(1887). 

'-  See  historical  sketch  of  the  development  of  the  statutes  im- 
posing liability  upon  carriers,  Appendix  B.  And  see  also  Holland 
v.  Lynn  &  Boston  Railroad,  144  Mass.  425,428  (1887). 

For  aid  in  the  construction  of  the  various  provisions  of  this 
section  of  the  statutes,  see  the  interpretation  given  to  similar  pro- 
visions of  the  statute  imposing  the  same  liability  upon  railroad 
corporations,  Pub.  Sts.  ch.  112,  a.  212,  ante. 

The  cases  decided  under  this  section  in  its  present  form  are  very 
few.  Comm.  v.  East  Boston  Ferry  Company,  13  Allen,  589 
(1866),  and  Comm.  v.  Coburn,  132  Mass.  555  (1882),  seem  to  com- 
prise the  whole  list. 


118          STATUTORY  TORTS   IN   MASSACHUSETTS. 

III.     Street  Railways. 

ACTS,  1886,  CHAPTER  140.  An  Act  Authorizing 
Actions  of  Tort  Against  Street  Railway  Corporations 
for  Loss  of  Life  By  Negligence. 

If  by  reason  of  the  negligence  or  carelessness  of 
a  corporation  operating  a  street  railway,  or  of  the  un- 
fitness  or  gross  negligence  or  carelessness  of  its  ser- 
vants or  agents,  while  engaged  in  its  business,  the 
life  of  a  passenger  or  of  a  person,  being  in  the  ex- 
ercise of  due  diligence,  and  not  a  passenger  or  in 
the  employment  of  such  corporation,  is  lost,  the  cor- 
poration shall  be  liable  in  damages  not  exceeding 
five  thousand  nor  less  than  five  hundred  dollars,  to 
be  assessed  with  reference  to  the  degree  of  culpa- 
bility of  said  corporation  or  of  its  servants  or  agents, 
and  to  be  recovered  in  an  action  of  tort  commenced 
within  one  year  from  the  injury  causing  the  death, 
by  the  executor  or  administrator  of  the  deceased  per- 
son, for  the  use  of  the  widow  and  children  of  the 
deceased,  in  equal  moieties;  or  if  there  are  no  chil- 
dren, to  the  use  of  the  widow;  or  if  no  widow  to  the 
use  of  the  next  of  kin.  But  no  executor  or  adminis- 
trator shall  for  the  same  cause  avail  himself  of  more 
than  one  of  the  remedies  given  by  this  act  and  sec- 
tion two  hundred  and  twelve  of  chapter  one  hundred 
and  twelve  of  the  Public  Statutes.1 

§  110.  The  Effect  of  the  Statute.  —  Prior  to  the 
passage  of  this  act,  an  action  of  tort  could  not  be 

1  Approved  April  12,  1886. 


LIABILITY  OF  COMMON  CARRIERS  OF  PASSENGERS.    119 

maintained  against  a  street-railway  company  for 
causing  the  death  of  a  person,  whether  a  passenger, 
or  one  not  a  passenger  nor  in  the  employment  of 
the  corporation.1  The  only  remedy  available  in 
such  cases  was  by  indictment,  in  accordance  with 
the  provisions  of  Public  Statutes,  chapter  one  hun- 
dred and  twelve,  section  two  hundred  and  twelve. 
The  broad  general  effect  of  this  statute  has  been, 
therefore,  simply  to  create  a  new  remedy  for  the 
enforcement  of  a  pre-existing  right  of  action. 

§  111.  The  Construction  of  the  Statute.  —  The 
language  of  this  act  follows  very  closely  that  of 
the  first  portion  of  section  two  hundred  and  twelve 
of  chapter  one  hundred  and  twelve  of  the  Public 
Statutes.  In  accordance  with  the  rule  of  construc- 
tion applicable  to  such  cases,  a  similar  interpreta- 
tion is  given  to  the  provisions  of  this  statute  to 
that  given  to  like  provisions  in  the  prior  statute. 
Thus  it  has  been  held  that  the  plaintiff  must 
clearly  indicate  in  his  pleadings  whether  he  intends 
to  rely  upon  negligence  on  the  part  of  the  cor- 
poration itself,  or  upon  the  unfitness  or  gross 
negligence  of  its  servants  or  agents,  as  the  basis 
of  his  action.  And  if  he  fails  to  allege  facts  show- 
ing either  the  one  alternative  or  the  other,  his 
declaration  is  bad  on  demurrer.2 

1  Holland  v.  Lynn  &  Boston  Railroad.  144  Mass.  425  (1887). 
Gunn  i'.  Cambridge  Railroad  Company,  144  Mass.  4.30  (1887). 

2  Gay  v.  Essex  Electric  Street  Railway,  159  Mass.  242  (1893). 
And  see  Morey  v.  Gloucester  Street  Railway,  171  Mass.  164  (1898). 

The  phrase  "  gross  negligence "  as  used  in  this  provision  of 


120          STATUTORY   TORTS   IN   MASSACHUSETTS. 

Again,  the  distinction  in  respect  to  the  question 
of  due  care,  between  the  position  occupied  by  a 
passenger  and  that  occupied  by  a  person  neither  a 
passenger  nor  an  employee,  which  was  established 
under  the  earlier  statute,  is  followed  in  the  con- 
struction of  this  act.1  If,  therefore,  the  deceased 
was  not  a  passenger  nor  in  the  employment  of 
the  corporation,  the  burden  rests  upon  the  plaintiff 
to  show,  either  by  positive  affirmative  testimony, 
or  by  evidence  from  which  the  inference  may 
legitimately  be  drawn,  that  he  was  at  the  time  of 
the  accident  in  the  exercise  of  due  care.2 

§  112.  A  Passenger.  —  The  term  "  passenger  "  as 
used  in  this  act  has  a  somewhat  more  limited 
meaning  than  is  given  to  it  under  the  statute 
imposing  a  similar  liability  upon  steam-railroad 
corporations.  This  arises  from  the  fact  that  a 
street-railway  company  does  not  maintain  passenger 
stations.  The  public  streets,  though  necessarily 
used  by  the  traveller  as  a  place  from  which  to 
take,  and  upon  which  to  leave,  street  cars,  do  not 
constitute  a  part  of  the  company's  premises,  over 
which  it  has  control  and  for  the  safety  of  which  it 
can  be  held  responsible:  they  are  not  properly 
passenger  stations.  The  relation  of  passenger  and 
carrier  continues,  therefore,  only  so  long  as  the 

the  act  has  been  held  to  have  the  same  meaning  as  was  given  to  it 
under  Pub.  Sts.  ch.  112,  s.  212.  Galbraith  v.  West  End  Street 
Railway,  165  Mass.  572,  580  (1896). 

1  Creamer  v.  West  End  Railway,  156  Mass.  320  (1892). 

2  Mullen  v.  Springfield  Street  Railway,  164  Mass.  450(1895). 
Galbraith  v.  West  End  Street  Railway,  165  Mass.  572,  580  (1896). 


LIABILITY  OF  COMMON  CARRIERS  OP  PASSENGERS.    121 

traveller  is  actually  upon  the  cars  of  the  company  : 
it  terminates  the  moment  he  steps  from  the  plat- 
form on  to  the  highway.  "  When  a  passenger 
steps  from  the  car  upon  the  street,  he  becomes  a 
traveller  upon  the  highway,  and  terminates  his 
relations  and  rights  as  a  passenger,  and  the  rail- 
way company  is  not  responsible  to  him  as  a  carrier 
i'or  the  condition  of  the  street,  or  for  his  safe  pass- 
age from  the  car  to  the  sidewalk."  Thus  where 
the  deceased  had  touched  the  ground  on  leaving 
the  car,  and  was  in  the  act  of  taking  his  second 
step  when  he  was  struck  and  instantly  killed  by  a 
car  approaching  from  the  opposite  direction,  it 
was  held  that  he  had  ceased  to  be  a  passenger  and 
was  simply  a  traveller  upon  the  highway  at  the 
time  when  the  accident  happened.1 

§  113.  Trespassers.  —  This  act  also  does  not  alter 
the  common  law  rule  relative  to  trespassers.  A 
street-railway  company  is  not,  therefore,  liable  for 
causing  the  death  of  a  person  who  is,  at  the  time 
of  the  accident,  trespassing  upon  its  cars,  in  the 
absence  of  wanton  or  reckless  conduct  on  its  part. 
Thus  where  the  deceased,  a  child  of  ten  years, 
was  fatally  injured  by  the  brake  on  a  car  upon 
which  he  was  playing,  it  was  held  that  there  could 
be  no  recovery  under  this  statute.2 

1  Creamer  v.  West  End  Railway,  156  Mass.  320  (1892). 

2  Gay  v.  Essex  Electric  Street  Railway,  159  Mass.  242  (1893). 


122          STATUTORY  TOETS   IN   MASSACHUSETTS. 


PART  IV. 

THE   LIABILITY  OF  EMPLOYERS. 

ACTS,  1887,  CHAPTER  270.1  An  Act  to  Extend  and 
Regulate  the  Liability  of  Employers  to  make  Com- 
pensation for  Personal  Injuries  Suffered  by  Employees 
in  Their  Service. 

§  114.  The  Construction  of  the  Act. — The  pur- 
pose of  the  legislature  in  enacting  this  statute,  as 
its  title  indicates  and  its  provisions  show,  was  to 
soften  some  of  the  harsh  features  of  the  old  com- 
mon law  of  master  and  servant,  and  so  to  place 
upon  the  statute  books  a  law  beneficial  to  the 
laboring  classes.  This  obvious  purpose  furnishes 
a  key  to  the  interpretation  of  the  whole  act,  —  its 
terms  are  to  be  given  a  liberal  construction,  favor- 
able to  the  employee  just  so  far  as  the  plain  mean- 
ing of  the  words  used  will  permit.2  And  this  rule 
has,  in  general,  been  consistently  applied  in  prac- 
tice under  the  act. 

There  is  also  a  further  principle  of  general  ap- 
plication to  be  taken  into  consideration  in  aid  of 

1  Approved^May  14,  1887. 

2  The  familiar  rule  relative  to  acts  in  derogation  of  the  common 
law  stands  in  the  way  of  any  interpretation  that  is  more  favorable 
to  the  employee  than  the  plain  meaning  of  the  words  employed  by 
the  legislature  will  permit. 


THE   LIABILITY   OF   EMPLOYERS.  123 

the  construction  of  the  statute.  The  vital  terms 
of  this  act,  as  is  well  known,  were  adopted,  with 
only  slight  changes  of  phraseology  and  of  detail, 
from  the  English  Employer's  Liability  Act.1  The 
rule  applies,  therefore,  that  the  interpretation  which 
the  English  courts  placed  upon  those  terms  prior 
to  their  enactment  by  the  Massachusetts  legisla- 
ture must  have  very  great,  if  not  controlling, 
weight  in  determining  the  construction  to  be  placed 
upon  the  same  terms  by  the  Massachusetts  court.2 
§  115.  The  General  Effect  of  the  Act.  —  Although 
the  word  "  regulate  "  is  used  in  its  title,  this  statute 
is  not,  and  was  not  intended  to  be,  a  codification 
of  the  whole  law  of  master  and  servant.  Outside  of 
its  scope  still  exist  those  duties  and  liabilities 
of  employers  that  the  common  law  has  always 
recognized  and  enforced.  The  real  effect  of  the 
statute  has  been  simply  to  take  those  duties  and 
liabilities  as  they  stood  at  the  passage  of  the  act, 
and  to  enlarge  them.3  This  result  it  has  brought 
about,  speaking  in  general  terms,  in  two  ways  : 
first,  by  abolishing  some  of  the  defences  that  the 
common  law  gave  to  the  employer ; 4  and,  second, 
by  creating  liabilities  against  him  under  circum- 
stances where  there  were  none  at  common  law.5 

1  43  &  44  Viet.  ch.  42,  enacted  in  1880. 

2  Comm.  i:  Hartnett,  3  Gray,  450,  451  (1855) ;  and  see  Ryalls  v. 
Mechanics'   Mills,  150   Mass.   190   (1889).     Mellor  v.  Merchants' 
Manufacturing  Co.,  150  Mass.  362,  363  (1890). 

8  See  Ryalls  v.  Mechanics'  Mills,  150  Mass.  190  (1889). 
*  See  §  US,  post. 
6  See  §  119,  post. 


124          STATUTORY   TOETS   IN   MASSACHUSETTS. 

§  116.  The  Common  Law  Liabilities  of  Employ- 
ers. —  The  common  law  liabilities  of  employers 
not  only  retain  their  place  in  the  system  of  Mas- 
sachusetts law,  but  they  are  entirely  unaffected 
by  this  act.1  Those  provisions  of  the  statute  rela- 
tive to  procedure,  such  as  the  requirement  of  notice, 
the  limitation  of  the  time  within  which  the  action 
must  be  begun,  the  restriction  of  the  amount  of 
damages  that  may  be  recovered,  —  all  apply  simply 
and  solely  to  actions  based  upon  the  statute,  and 
hence  in  no  way  restrict  actions  at  common  law.2 

Indeed,  a  plaintiff  may,  if  he  so  desires,  include 
in  his  declaration  counts  both  at  common  law  and 
under  the  statute,  and  may  be  allowed  to  go  to  the 
jury  on  both  counts.  It  is  generally,  however,  a 
matter  entirely  within  the  discretion  of  the  pre- 
siding judge  whether,  under  such  a  declaration, 
the  plaintiff  shall  be  allowed  to  do  this  or  shall  be 
required  to  elect,  at  the  close  of  the  evidence, 
whether  he  will  stand  upon  the  counts  at  common 
law  or  upon  those  founded  upon  the  statute;3  and 
if,  when  so  required  to  elect,  he  chooses  to  pursue 
his  remedy  under  this  statute,  the  judgment  in  that 

1  Coughlin   v.   Boston   Tow-Boat    Co,    151    Mass.   92    (1890). 
Clark  v.  Merchants',  etc.  Transportation  Co.,  151  Mass.  352  (1890). 

2  See  Ryalls  v.  Mechanics'  Mills,  150  Mass.  190  (1889). 

3  Toomey   i?.   Donovan,   158   Mass.   232  (1893).     "Whether  a 
plaintiff  can  be  compelled  to  elect  before  the  close  of  the  evidence 
has  not  been  decided,  neither  has  it  been  decided  that  in  every  case 
of  this  class  the  trial  court  can  or  ought  to  compel  the  plaintiff  to 
elect."    Clare  v.  New  York  &  New  England  Kailroad,  1 72  Mass. 
211,213  (1898). 


THE   LIABILITY   OF   EMPLOYERS.  125 

action  will  be  a  bar  to  any  subsequent  proceeding 
at  common  law  based  upon  the  same  cause  of 
action.1  No  exception  will  be  sustained  to  a  wise 
exercise  of  the  discretion  of  the  trial  court  in  this 
matter.2 

§  117.  Declaring  under  the  Act ;  Counts.  —  In 
actions  under  the  statute  a  plaintiff  may  insert  in 
his  declaration  counts  based  upon  the  different 
clauses  of  the  first  section  ;  and  if  he  has  done  so, 
he  cannot  be  compelled  at  the  trial  to  elect  upon 
which  of  them  he  will  go  to  the  jury.  This  matter 
does  not  come  within  the  discretion  of  the  presid- 
ing judge.3  Relative  to  the  point,  the  court  has 
said :  "  The  evidence  in  any  particular  case  may 
make  it  uncertain  on  which  ground  the  liability  of 
the  defendant  depends,  if  there  is  any  liability  ; 
therefore  a  plaintiff  ought  to  be  permitted  to  allege 
all  the  grounds  of  liability  which  there  is  any  evi- 
dence to  support,  and  these  we  think  may  properly 
be  alleged  separately  in  separate  counts.  .  .  .  The 
whole  liability  of  the  defendant  for  the  death  of  an 
employee  ought  to  be  tried  in  one  action,  and 
judgment  in  that  action  ought  to  be  a  bar  to  any 
subsequent  action  between  the  same  parties  for  the 
same  cause  of  action."  4 

1  Clare  v.  New  York  &  New  England  Railroad,  172  Mass.  211, 
213  (1898). 

2  Brady  v.  Lndlow  Manufacturing  Co.,  154  Mass.  468  (1891). 
Murray  v.  Knight,  156  Mass.  518  (1892).    See  also  May  v.  Whittier 
Machine  Co.,  154  Mass.  29  (1891). 

8  Beauregarde  v.  Webb  Granite,  etc.  Co.,  160  Mass.  201  (1893). 
*  Beauregarde  v.  Webb  Granite  etc.,  Co.,  160  Mass.  201  (1893). 


126          STATUTORY  TORTS   IN   MASSACHUSETTS. 

But  if  the  plaintiff  has  been  required,  at  the 
trial,  to  make  an  election  between  counts  both  of 
which  were  based  upon  the  statute,  exceptions  to 
that  order  will  not  be  sustained,  if  it  appears  that 
he  was  not  injured  thereby.1 

§  118.  The  Defence  of  Common  Employment.  — 
What  may  perhaps  be  termed  the  destructive  opera- 
tion of  the  statute  is  to  abolish  the  defence  of 
common  employment ; 2  and  this  appears  to  be  its 
only  effect  in  this  direction.  It  may  hardly  be 
necessary  to  add  that  the  act  has  not  wholly 
abolished  this  defence,  but  only  in  those  cases 
that  come  within  its  terms.  Section  one  enu- 
merates the  employees  that  are  taken  out  of  the 
category  of  fellow  servants,  and  the  list  cannot  be 
extended  by  construction  so  as  to  avoid  the  de- 
fence of  common  employment  in  cases  involving 
the  negligence  of  any  employee  other  than  those 
there  specified.3  There  arises,  thus,  in  every  case 
the  preliminary  inquiry  :  Was  the  employee  whose 
negligence  caused  the  injury  one  of  those  for  whose 
negligence  the  employer  is  made  liable  at  the  suit 
of  a  fellow  servant,  by  the  terms  of  this  statute  ? 
The  burden  of  establishing  an  affirmative  answer 
to  this  question  rests,  of  course,  upon  the  plaintiff.4 

§  119.  The   Creative  Operation  of  the  Act.  —  The 

1  Conroy  v.  Clinton,  158  Mass.  318  (1893). 

2  See  O'Maley  v.  South  Boston  Gas  Light  Co.,  158  Mass.  135, 
136  (1893). 

3  O'Keefe  v.  Brownell,  156  Mass.  131  (1892). 

.     *  Gibbs  v.  Great  Western  Railway  Co.,  12  Q.  B.  P.  208  (1884). 


THE   LIABILITY   OF   EMPLOYERS.  127 

statute  creates  a  new  liability  against  employers, 
it  seems,  only  under  one  set,  or  at  most  two  sets, 
of  circumstances  :  first,  where  the  death  of  the 
employee  results  from  the  accident ;  and,  possibly, 
where  the  employee  of  an  independent  contractor 
or  of  a  sub-contractor  is  injured  by  negligence  that 
is  attributed  to  the  employer  under  the  provisions 
of  the  fourth  section  of  the  act.1  In  this  direction 
also  the  scope  of  the  statute  is  strictly  limited  to 
the  cases  specified  in  it,  and  cannot  be  broadened, 
even  by  the  aid  of  the  provisions  of  kindred 
statutes.  Thus,  it  has  been  held  that  where  an 
employee  died  without  conscious  suffering,  leaving 
no  widow  nor  dependent  next  of  kin,  his  adminis- 
trator could  not  entitle  himself  to  maintain  an 
action  under  this  statute  by  aid  of  the  provisions 
of  ch.  112,  s.  212,  of  the  Public  Statutes,  as 
amended  by  the  acts  of  1883,  ch.  243.2 

§  120.  Application  of  the  Act  to  Municipal  Cor- 
porations.—  While  the  provisions  of  this  statute 
apply  to  municipal  corporations 3  as  well  as  to 
other  employers  of  labor,  it  does  not  change  the 
peculiar  common  law  doctrines  of  agency  that 
apply  to  such  corporations.  It  does  not  by  itself, 

1  See  §  198,  post,  and  notes. 

2  Clark  v.  New  York,  etc.  Railroad,  160  Mass.  39  (1893).     See 
also  Dacey  ».  Old  Colony  Railroad,  153  Mass.  112, 117  (1891). 

8  Coan  v.  Marlborough,  164  Mass.  206  (1895).  Connolly  u. 
"Wnltham,  156  Mass.  368  (1892).  Conroy  ».  Clinton,  158  Mass. 
318(1893).  Norton  v.  New  Bedford,  166  Mass.  48  (1896).  Cough- 
Ian  v.  Cambridge,  166  Mass.  268  (1896).  Taggart  v.  Fall  River, 
170  Mass.  325  (1898). 


128          STATUTORY   TORTS   IN   MASSACHUSETTS. 

therefore,  impose  any  liability  upon  them  to  their 
employees  where  an  injury  results  from  negligent 
acts  done  by  their  officers  and  agents  in  the  course 
of  the  performance  of  a  duty  imposed  upon  them 
by  law  for  the  benefit  of  the  public,  and  from  the 
performance  of  which  the  corporation  derived  no 
profit  or  advantage,  even  though  the  person  whose 
negligent  acts  caused  the  injury  may  be  one  of 
those  for  whose  negligence  employers  are  made 
liable  by  this  act.  Thus,  where  an  employee  of  a 
city  was  injured  by  the  fall  of  a  bank  of  gravel 
under  which  he  was  at  work  by  the  direction  of 
the  assistant  superintendent  of  streets,  who  was  at 
the  time  engaged  in  taking  out  gravel  for  use  in 
repairing  a  public  street,  it  was  held  that  since  the 
assistant  superintendent  of  streets  was  a  public 
officer  for  whose  negligence  in  the  course  of  the 
performance  of  this  public  duty  the  city  was  not 
liable  at  common  law,  the  plaintiff  could  not  re- 
cover compensation  for  his  injury  under  this  act.1 

§  121.  Waiver  by  the  Employee  of  the  Rights  given 
by  the  Act.  —  The  question  has  not  yet  been  raised 
in  this  Commonwealth  whether  or  not  the  rights 
given  to  the  employee  by  this  statute  can  be  waived 
by  the  special  agreement  of  the  parties.  As  a 
matter  of  construction  the  Massachusetts  court 
has  approached  the  question  only  so  far  as  to  lay 
down  the  broad  general  principle  that  this  statute 

1  McCann  v.  Waltham,  163  Mass.  344  (1895).  PettSngell  v. 
Chelsea,  161  Mass.  368  (1894).  Mahoney  v.  Boston,  171  Mass.  427 
(1898),  accord.  And  see  Collins  v.  Greenfield,  172  Mass.  78  (1898). 


THE   LIABILITY   OP   EMPLOYERS.  129 

does  not  restrict  nor  affect  the  right  of  employer 
and  employee  to  make  such  agreements  between 
themselves  as  they  see  fit.1  Although  this  is  a 
step  toward  an  affirmative  decision,  the  provisions 
of  the  acts  of  1894,  ch.  508,  s.  6,2  appear  to  afford 
an  effectual  bar  to  further  progress  in  that  direction. 

In  England,  however,  it  has  been  distinctly  held 
that  an  employee  may,  by  express  contract,  de- 
prive himself  of  the  benefit  afforded  by  the  act.3 
This  decision  the  English  court  put  upon  the 
ground  that  since,  as  a  general  rule,  entire  freedom 
of  contract  has  been  preserved,  such  an  agreement 
would  come  within  that  general  rule,  there  being 
nothing  in  the  wording  of  the  statute  to  compel  a 
different  construction. 

§  122.  Assumption  of  Risk ;  Defects  in  "Ways, 
Works  or  Machinery.  —  It  is  a  familiar  doctrine  of 
the  law  of  master  and  servant  that  when  a  person 
enters  a  service  he  impliedly  agrees  to  take  upon 
himself  the  obvious  risks  incident  to  the  perform- 
ance of  his  duties  under  the  then  existing  condi- 
tions, provided  he  is  of  sufficient  capacity  to 
understand  and  appreciate  them.  This  doctrine  of 

1  See  O'Maley  v.  South  Boston  Gas  Light  Co.,  158  Mass.  135, 
137  (1893). 

2  This  section  reads  as  follows :  "  No  person  or  corporation  shall, 
by  a  special  contract  with  persons   in  his  or  its  employ,  exempt 
himself  or  itself  from  any  liability  which  he  or  it  might  be  under  to 
such  persons  for  injuries  suffered  by  them  in  their  employment 
and  which  result  from  the  employer's  own  negligence  or  from  the 
negligence  of  other  persons  in  his  or  its  employ." 

8  Griffiths  v.  The  Earl  of  Dudley,  9  Q.  B.  D.  357  (1882). 
9 


130          STATUTORY   TORTS   IN   MASSACHUSETTS. 

the  assumption  of  risk,  so  far  as  it  relates  to  dangers 
incident  to  the  defectiveness  or  inferiority  of  the 
employer's  ways,  works,  or  machinery,  continues 
in  force  under  the  Employer's  Liability  Act,  and 
applies  to  cases  based  upon  it  in  the  same  manner, 
to  the  same  extent,  and  with  the  same  effect  as  at 
common  law.1  Therefore,  whatever  may  be  the 
difficulties  of  its  practical  application,  the  rule  is 
clear  that  if  an  employee  is  injured  by  reason  of 
any  danger  the  risk  of  which  he  must,  under  this 
doctrine,  be  deemed  to  have  assumed,  he  cannot 
recover  compensation  under  the  statute.2 

As  a  rule  of  law,  the  operation  of  this  principle 
of  the  common  law  is  limited  to  such  defects  as 

1  Cassady  v.  Boston  &  Albany  Railroad,   164  Mass.  168,  170 
(1895).     O'Maley  v.  South  Boston  Gas  Light  Co.,  158  Mass.  135 
(1893). 

2  O'Maley  v.  South  Boston  Gas  Light  Co.,  158  Mass.  135  (1893). 
Fisk  D.  Fitchburg   Eailroad,   158   Mass.  238   (1893).     Gleason  v. 
New   York,   etc.    Railroad,    159  Mass.    68    (1893).     Goodridge  v. 
"Washington  Mills  Co.,  160  Mass.  234  (1893).     Sullivan  v.  Fitch- 
burg  Railroad,   161    Mass.    125    (1894).      Connelly  v.   Hamilton 
Woolen  Co.,  163  Mass.  156  (1895).     Cassady  v.  Boston  &  Albany 
Railroad,  164  Mass.  168  (1895).     Austin  v.  Boston  &  Maine  Rail- 
road, 164  Mass.  282  (1895).     Lehman  v.  Van  Nostrand,  165  Mass. 
233  (1896).     O'Brien  v.  Staples  Coal  Co.,  165  Mass.  435  (1896). 
Kenney  v.  Hingham  Cordage  Co.,  168  Mass.  278  (1897).    McCauley 
v.  Springfield  Street  Railway,  169  Mass.  301  (1897).     Thompson  v. 
Norman  Paper  Co.,  169  Mass.  416  (1897).     Beique  v.  Hosmer,  169 
Mass.  541   (1897).     O'Connor  v.  Whittall,  169  Mass.  563  (1897). 
Donahue  v.  Washburn  &  Moen  Manuf.  Co.,  169  Mass.  574  (1897). 
Cunningham  v.  Lynn   &  Boston  Street  Railway,  170  Mass.  298 
(1898).     Tenanty  v.   Boston  Manufacturing  Co.,    170  Mass.   323, 
(1898).    Mclsaac  v.  Northampton  Electric,  etc.  Co.,  172  Mass.  89 
(1898).  Ellsbury  v.  New  York,  etc.  Railroad,  172  Mass.  130  (1898). 


THE  LIABILITY   OF   EMPLOYEES.  131 

are  open  and  obvious,  —  those  the  existence  of 
which  the  employee  knew  or  ought  to  have  known 
when  he  entered  the  service.1  And  in  a  case  in- 
volving injury  by  reason  of  such  defects,  the  pre- 
siding judge  may  either  take  the  case  from  the 
jury,  or  order  a  verdict  for  the  defendant.2 

§  123.  Exceptions  to  Doctrine  of  Assumption  of 
Risk.  —  There  are  certain  exceptions  to  the  rule 
as  to  the  assumption  of  the  risk  incident  to  defects 
in  the  ways,  works,  or  machinery  that  are  recog- 
nized in  the  decisions  under  the  statute.  Thus, 
whether  the  agreement  between  employer  and  em- 
ployee relative  to  risks  be  express  or  implied,  the 
latter  cannot,  it  seems,  be  held  to  have  assumed 
the  risk  from  dangers  resulting  from  conditions 
which  arise  or  defects  which  come  into  existence, 
after  the  making  of  the  contract,  which  cannot  be 
deemed  to  have  been  contemplated  when  the  con- 
tract was  made.3 

1  Austin  v.  Boston  &  Maine  Railroad,  164  Mass.  282  (1895). 

2  See  cases  cited  page  130,  note  2. 

Even  though  an  employee  must  be  held  to  have  assumed  the 
obvious  risks  of  his  employment,  "  this  is  not  conclusive  against 
his  right  to  have  compensation  for  his  injury,  if  upon  the  evidence 
there  was,  back  of  the  dangers  of  which  he  assumed  the  risk,  some 
breach  of  duty  toward  him  on  the  part  of  his  employer  which 
could  fairly  be  found  to  have  been  the  cause  of  the  accident."  The 
negligence  of  the  superintendent  may  be  such  a  breach  of  duty. 
McPhee  v.  Scully,  163  Mass.  216  (1895). 

8  See  O'Maley  v.  South  Boston  Gas  Light  Co.,  158  Mass.  135, 
138  (1893). 

But  if,  after  the  employment  has  begun,  alterations  are  made 
which  render  the  ways,  works,  or  machinery  more  dangerous,  and 
the  employee,  knowing  the  facts,  continues  in  the  service  without 


132         STATUTORY  TORTS   IN  MASSACHUSETTS. 

And  again,  an  employee  cannot  be  held,  as  a 
matter  of  law,  to  have  assumed  the  risks  arising 
from  an  unusual  and  unreasonable  method  of 
transacting  the  employer's  business.1  If,  therefore, 
the  evidence  shows  that  there  was  a  defect  in  the 
ways,  works,  or  machinery  which  was  not  the  usual 
and  obvious  condition  of  things,  and  that  such 
defect  caused  the  injury,  it  becomes  a  question  of 
fact  for  the  jury  whether  the  plaintiff  was  injured 
by  an  occurrence  the  risk  of  which  he  had  assumed. 

In  England  it  has  been  held  that  where  a  duty 
is  imposed  upon  an  employer  by  statute,  the  em- 
ployee cannot  assume  the  risk  of  his  failure  to 
perform  that  duty,  and  he  is  entitled  to  recover 
under  this  act,  although  he  knew  of  the  breach  of 
the  statutory  duty  on  the  part  of  the  employer  and 
continued  at  work  in  spite  of  that  knowledge.8 
The  question  involved  in  that  decision  has  not  yet, 
however,  been  passed  upon  by  the  Massachusetts 
court.4 

objection  on  account  of  the  additional  risk  to  which  he  is  subjected, 
his  consent  to  the  risk  may  be  inferred.  Carrigan  v.  Washburn  & 
Moen  Manuf.  Co.,  170  Mass.  79  (1898). 

1  Caron  v.  Boston  &  Albany  Railroad,  164  Mass.  523,  526  (1895). 
Lynch  w.  Allyn,  160  Mass.  248,  253  (1893). 

2  Geloneck  v.  Dean  Steam  Pump  Co.,  165  Mass.  202,216  (1896). 
Powers  v.  Fall  River,  168  Mass.  60  (1897).     Lynch  v.  Allyn,  160 
Mass.  248,  253  (1893).     See  also  Brouillette  v.  Conn.  River  Rail- 
road, 162  Mass.  198  (1894). 

8  Baddeley  v.  Earl  Granville,  19  Q.  B.  D.  423  (1887). 

*  For  statutes  imposing  certain  duties  upon  employers,  see 
Acts  1894,  ch.  41,  an  act  to  provide  for  the  blocking  of  railroad 
frogs,  switches,  and  guard  rails.  Acts  1895,  ch.  362,  an  act  to 


THE   LIABILITY   OF   EMPLOYERS.  133 

§  124.  Voienti  non  fit  Injuria.  —  The  broader 
.principle  of  common  law,  expressed  by  the  maxim 
volenti  non  fit  injuria,  applies  also  to  cases  under 
this  statute,  and  with  like  effect  as  at  common 
law.  If,  therefore,  an  employee  is  injured  in  con- 
sequence of  defects  in  the  condition  of  the  ways, 
works,  or  machinery  that  were  known  to  him,  the 
risk  of  which  he  understood  and  appreciated,  and 
voluntarily  encountered,  he  is  debarred  from  re- 
covering damages  therefor  in  an  action  under  the 
statute.1  The  peculiar  field  for  the  application  of 
this  principle  is  obviously  to  those  cases  where  an 
injury  results  from  dangers  that  do  not  come  with- 
in the  narrower  doctrine  of  the  assumption  of  risk, 
—  dangers  that  arise  after  the  service  begins,  as 
well  as  dangers  in  existence  in  the  beginning.2 
But  in  order  to  make  the  rule  applicable  to  any 
specific  case,  it  is  not  enough  to  show  mere  knowl- 
edge of  the  existence  of  the  danger :  it  must 
further  appear  that  the  risk  was  appreciated  and 
voluntarily  assumed.3  Unless  the  circumstances 
are  such  as  to  make  it  perfectly  clear  that  the 

require  locomotives  and  cars  used  in  traffic  within  the  Common- 
wealth to  be  equipped  with  certain  safety  appliances. 

1  Mellor  v.   Merchants'  Manufacturing    Co.,    150    Mass.   362 
(1890).     Lothrop  v.  Fitchburg   Railroad,    150  Mass.   423  (1890). 
Thomas  v.  Quartermain,  18  Q.  B.  D.  685  (1887).     Smith  v.  Baker, 
[1891]  A.  C.  325. 

2  See  Fitzgerald  v.  Connecticut  River  Paper  Co.,  155  Mass.  155 
(1891). 

8  Thomas  v.  Quartermain,  18  Q.  B.  D.  685  (1887).    Fitzgerald 
».  Connecticut  River  Paper  Co.,  155  Mass.  155  (1891). 


134          STATUTORY  TORTS   IN   MASSACHUSETTS. 

whole  risk  was  voluntarily  encountered,  the  ques- 
tion is  one  of  fact  for  the  jury.1 

§  125.  Assumption  of  Risk  ;  Negligence  of  Super- 
intendent. —  At  common  law  it  is  considered  to  be 
a  part  of  the  implied  contract  of  service  that  the 
employee  assumes  the  risk  of  the  negligence  of 
his  fellow  servants,  of  whom  the  superintendent  is 
one.2  The  statute,  however,  has  so  far  changed 
the  common  law  relations  of  these  two  parties  that 
the  superintendent  and  the  employee  under  him 
are  not  fellow  servants  in  those  cases  within  its 
terms ;  and  hence,  in  such  cases,  there  is  no  room 
for  implying  that  term  of  the  contract  of  service 
which  the  common  law  recognizes.  It  has,  there- 
fore, been  uniformly  held  that  an  employee  cannot, 
under  the  act,  assume  the  risk  that  the  superin- 
tendent will  do  a  negligent  act  which  will  result 
in  his  injury.3  This  rule  is  obviously  the  mere 
assertion  in  another  form  that  the  act  has,  in  such 
cases,  abolished  the  defence  of  common  employ- 
ment. 

These  decisions  still  leave  open  the  broader  ques- 
tion whether  or  not  an  employee  can,  under  the  act, 
voluntarily  assume  the  risk  of  the  negligence  of  a 
superintendent  whom  he  knows  to  be  incompetent 

1  Mahoney  v.  Dore,  155  Mass.  513,  518  (1892). 

2  Farwell  v.  Boston  &  Worcester  Railroad  Corporation,  4  Met. 
49    (1842).     Moody  v.   Hamilton  Manufacturing  Co.,   159  Mass. 
70  (1893). 

3  Malcolm  v.  Fuller,  152  Mass.  160,  167.  (1890).     Davis  v.  New 
York,  New  Haven,    etc.   Railroad,   159   Mass.   532,   536   (1893). 
Lynch  v.  Allyn,  160  Mass.  248,  254  (1893). 


THE   LIABILITY   OF    EMPLOYERS.  135 

and  habitually  careless.1  Since  that  doctrine, 
commonly  expressed  by  the  maxim  volenti  non  fit 
injuria,  rests  upon  principles  entirely  distinct  from 
those  of  the  fellow-servant  rule,  and  upon  princi- 
ples that  the  act  has  not  abolished,  qucere  whether 
this  field  is  not  still  open  for  its  application. 

All  of  the  above  principles,  and  the  qucere  as 
well,  apply  in  like  measure  to  cases  involving  the 
negligence  of  such  a  person  as  is  described  in  the 
third  clause  of  the  first  section  of  the  statute. 

§  126.  Actions  under  the  Act  in  the  Federal 
Courts.  —  If  the  facts  of  a  case  arising  under  this 
statute  are  such  that  the  United  States  courts  would 
have  jurisdiction  over  it,  the  plaintiff  has  the  option 
of  bringing  his  action  either  in  the  State  or  the 
Federal  court.  In  such  a  case  it  may  oftentimes 
be  an  advantage  to  him  to  elect  to  sue  in  the  latter 
tribunal,  since  it  applies  its  own  interpretation 
of  common  law  rules,  which  interpretation  may  be 
more  favorable  to  a  plaintiff  than  that  applied  by 
the  State  court.  Thus  it  seems  that  the  well- 
settled  rule  of  the  Federal  courts  which  makes 
contributory  negligence  a  matter  of  defence  only, 
will  be  applied  to  cases  under  this  statute.2  But 
in  so  far  as  the  construction  given  to  the  terms  of 
the  act  itself  is  concerned,  the  one  tribunal  is  no 
more  favorable  than  the  other :  that  general  rule 
of  practice  which  makes  the  interpretation  given 

1  See  the  common  law  case   of  Hatt  v.  Nay,  144  Mass.  186 
(1887). 

2  Griffin  v.  Overman  Wheel  Co.,  61  Fed.  Rep.  568  (1894). 


136          STATUTORY   TORTS  IN   MASSACHUSETTS. 

to  the  statutes  of  a  State  by  the  highest  court  of 
that  State  binding  upon  the  United  States  courts, 
applies  to  actions  based  upon  this  act.1 

SECTION  1.  Where,  after  the  passage  of  this  act, 
personal  injury  is  caused  to  an  employee,  who  is  him- 
self in  the  exercise  of  due  care  and  diligence  at  the 
time :  — 

§  127.  Who  may  sue;  What  he  must  show. — 
Under  the  act  the  right  of  action  does  not  cease 
with  the  death  of  the  injured  employee,  as  is  the 
rule  at  common  law.  This  section,  therefore,  is 
construed  as  giving  a  right  of  action  not  alone  to 
the  injured  employee  himself,  but  also,  in  case  of 
his  death,  to  his  legal  representatives  suing  in  his 
right.2 

In  either  case  the  burden  rests  upon  the  plaintiff 
to  bring  his  case  within  the  terms  of  the  section. 
To  sustain  this  burden  he  must  show,  first,  the 
existence  of  some  defect  in  the  ways,  works,  or 
machinery,  or  the  negligence  of  some  one  of  those 
persons  mentioned  in  the  second  or  third  clauses ; 
and,  second,  that  personal  injury  was  caused  by 
reason  thereof.  Each  of  these  points  must  be  estab- 
lished ;  neither  one  without  the  other  is  sufficient 
to  entitle  the  plaintiff  to  recover  compensation.3 

§  128.  The  Requirement  of  Due  Care.  —  The  pro- 
vision of  the  act  relative  to  diligence  introduces 

1  See  Leffingwell  v.  Warren,  2  Black,  599,  603  (1862). 

2  Eamsdell  v.  New  York,  etc.  Railroad,    151   Mass.  245,  250 
(1890). 

8  See  Felt  v.  Boston  &  Maine  liailroad,  161  Mass.  311  (1894). 


THE   LIABILITY   OF   EMPLOYERS.  137 

no  new  element  into  the  right  of  an  employee  to 
recover  compensation  from  his  employer  for  per- 
sonal injuries  suffered  in  the  course  of  his  employ- 
ment. The  common  law  doctrine  of  contributory 
negligence  is  thereby  expressly  retained  under  the 
statute,  and  without  modification. 

Likewise  the  common  law  rule  as  to  the  burden 
of  establishing  the  fact  of  due  care,  as  that  rule  is 
interpreted  by  the  Massachusetts  court,  applies  to 
actions  based  upon  the  statute.1  It  rests,  there- 
fore, upon  the  plaintiff  to  show,  either  by  positive 
affirmative  testimony  or  by  evidence  from  which  it 
may  legitimately  be  inferred,  that  he  was  at  the 
time  of  the  accident  in  the  exercise  of  due  dili- 
gence ;  and  the  establishment  of  this  fact  is  a 
condition  precedent  to  his  recovery.2 

§  129.  Some  Principles  of  the  Doctrine  of  Due 
Care.  —  It  may  perhaps  be  worth  the  while  to  note  in 
passing  some  of  the  common  principles  of  the  law 
as  to  due  care  that  have  been  applied  in  actions  based 
upon  this  statute.  Thus  it  has  been  held  that  due 
care  on  the  part  of  the  plaintiff  or  of  the  deceased 
may  be  inferred  as  well  from  the  absence  of  negli- 
gence, where  there  is  a  full  disclosure  of  the  facts  of 
the  case,  as  from  positive  acts  of  diligence.3  Where 
the  facts  in  the  case,  therefore,  go  to  show  that 

1  See  opinion  of  Mr.  Justice  Webb  in  Griffin  v.  Overman  Wheel 
Co.,  61  Fed.  Rep.  568  (1894). 

2  Lynch   v.   Boston  &  Albany   Railroad,    159   Mass.  536,  538 
(1893).     Geyette   v.  Fitchburg   Railroad,  162  Mass.   549    (1895). 
Flaherty  v.  Norwood  Engineering  Co.,  172  Mass.  134  (1898). 

8  Caroii  v.  Boston  £  Albany  Railroad,  164  Mass.  523,  525  (1895). 


138          STATUTORY  TORTS   IN   MASSACHUSETTS. 

the  plaintiff  was  engaged  in  the  performance  of 
his  duty,  and  there  is  nothing  to  show  that  he  was 
careless,  and  the  case  is  not  one  which  makes  it 
incumbent  on  the  plaintiff  to  prove  that  he  did  a 
particular  act  by  way  of  precaution,  there  is  evi- 
dence from  which  the  jury  may  properly  find  that 
he  was  in  the  exercise  of  due  care.1  But  if  the 
evidence  fails  to  show  that  the  employee  was  en- 
gaged in  the  performance  of  his  duty,  or  to  show 
what  he  was  doing,  when  the  accident  happened, 
an  inference  of  due  care  is  not  justified  :  2  there  is 
not  in  such  a  case  a  sufficient  disclosure  of  the 
facts  to  furnish  a  basis  upon  which  to  form  a 
proper  inference.  The  rule  is,  of  course,  the  same 
where  there  is  nothing  to  show  how  the  accident 
happened.3  In  each  of  these  latter  cases  the  ques- 
tion of  due  care  is  left  wholly  to  conjecture. 

When  the  case  is  one  that  requires  the  employee 
to  do  any  act  for  his  own  protection,  in  order  to 
satisfy  the  burden  of  proof  on  this  subject  it  must 
appear  affirmatively  that  he  did  that  act.4  But  it 
is  not  necessary,  it  seems,  to  show  in  such  cases 
that  the  employee  took  every  possible  precaution  to 
protect  himself :  he  has  a  right  to  trust,  somewhat 

1  Thyng  v.  Fitchburg  Railroad,   156   Mass.  13  (1892),  as   ex- 
plained  in   Geyette  v.  Fitchburg  Railroad,   162   Mass.  549,   551 
(1895). 

2  Irwin  v.  Alley,  158  Mass.  249  (1893).     Tyndale  v.  Old  Colony 
Railroad,  156  Mass.  503,  505  (1892). 

8  Dacey  v.  New  York,  etc.  Railroad,  168  Mass.  479  (1897). 
4  Lynch  v.  Boston  &  Albany  Railroad,  159  Mass.  536  (1893). 
See  also  Davis  v.  New  York,  etc.  Railroad,  159  Mass.  532  (1893). 


THE  LIABILITY   OF   EMPLOYERS.  139 

at  least,  to  the  superintendent  to  look  out  for  his 
safety,  in  determining  how  and  where  he  shall 
work  ; 1  and  this  seems  to  be  so  even  though  all  of 
the  conditions  are  known  to  the  employee.2  Just 
how  far  this  right  to  rely  upon  the  superintendent 
extends  is  a  difficult  problem,  toward  the  solution 
of  which  the  cases  afford  little  help. 

The  circumstances  of  a  case  may  be  such  that 
the  employee  has  a  right  to  rely  upon  something 
in  the  ways  or  works  to  warn  him  of  the  approach 
of  danger,  especially  where  his  duty  requires  him 
to  give  his  whole  attention  in  other  directions.  In 
such  a  case  he  has  the  right  to  assume  that  the 
ways  or  works  are  in  such  a  condition  as  to  give 
the  proper  warning,  and  is  not  negligent  in  acting 
upon  that  assumption.3 

1  Hennessy  v.  Boston,  161  Mass.  502  (1894).     Mahoney  v.  New 
York,  etc.  Railroad,  160  Mass.  573  (1894),  semble. 

2  Powers  v.  Fall  River,  168  Mass.  60  (1897). 

8  Maher  v.  Boston  &  Albany  Railroad,  158  Mass.  36,  44  (1893). 

The  question,  of  due  care  on  the  part  of  the  employee  has  been 
discussed  in  various  aspects  in  the  numerous  cases  under  the 
statute.  For  such  discussions  see  Sullivan  v.  Old  Colony  Railroad, 
153  Mass.  118  (1891).  Thompson  v.  Boston  &  Maine  Railroad, 

153  Mass.  391  (1891).     Gustafsen  v.  Washburn  &  Moen  Manuf. 
Co.,  153  Mass.  468,  474  (1891).     Shea  v.  Boston  &  Maine  Railroad, 

154  Mass.  31  ( 1891 ).     Steffe  v.  Old  Colony  Railroad,  156  Mass.  262 
(1892).     Tyndale  v.  Same,  156  Mass.  503  (1892).     Maher  v.  Boston 
&  Albany  Railroad,  158  Mass.  36  (1893).     Shepard  v.  Boston  & 
Maine  Railroad,  158  Mass.  174  (1893).     Davis  v.  New  York,  etc. 
Railroad,  159  Mass.  532,  535  (1893).     Geyette  v.  Fitchburg  Rail- 
road, 162  Mass.  549  (1895).     Mears  v.  Boston  &  Maine  Railroad, 

163  Mass.  150  (1895).     Houlihan  v.  Connecticut  River  Railroad, 

164  Mass.  555   (1895).    Nihill  v.  New  York,  etc.    Railroad,   167 
Mass.   52   (1896).    Dyer  v.  Fitchburg  Railroad,    170  Mass.   148 


140         STATUTORY  TORTS   IN  MASSACHUSETTS. 

SECTION  1,  CLAUSE  1.  By  reason  of  any  defect  in 
the  condition  of  the  ways,  works  or  machinery  con- 
nected with  or  used  in  the  business  of  the  employer, 
which  arose  from  or  had  not  been  discovered  or  rem- 
edied owing  to  the  negligence  of  the  employer  or  of 
any  person  in  the  service  of  the  employer  and  in- 
trusted by  him  with  the  duty  of  seeing  that  the  ways, 
works  or  machinery  were  in  proper  condition ;  or 

§  130.  Effect  of  the  Clause.  —  It  was,  at  the 
time  of  the  enactment  of  this  statute,  the  common 
law  rule,  well  settled  in  Massachusetts,  that  it 
was  the  duty  of  an  employer  to  use  reasonable 
care  both  in  furnishing  ways,  works,  and  ma- 
chinery suitable  for  the  carrying  on  of  his  business, 
and  also  in  keeping  them  in  repair.1  It  was 
equally  well  settled  that  lie  could  not  wholly  es- 
cape liability  for  a  breach  of  those  duties  simply 
by  delegating  their  performance  to  a  competent 
servant.2  While  the  rule  upon  this  latter  point 
was  somewhat  indefinite,  it  was  pretty  clear  that 
the  employer  was  not  liable  for  the  negligence  of 
such  a  servant  in  all  cases,  but  only  where  his 
negligence  -was  of  such  a  character  as  to  show  a 
failure  on  the  part  of  the  employer  himself  in  the 
performance  of  his  own  duties.3  There  was,  there- 

(1898).     Fossi>.  Old  Colony  Railroad,  170  Mass.  168  (1898).     St. 
Jean  v.  Boston  &  Maine  Railroad,  170  Mass.  213  (1898). 

1  Holden  v.  Fitchburg  Railroad,  129  Mass.  268  (1880),  and  cases 
cited. 

2  Lawless  v.  Connecticut  River  Railroad,  136  Mass.  1  (1883). 

8  Rogers  v.  Ludlow  Manufacturing  Co.,  144  Mass.  198  (1887). 


THE   LIABILITY   OP   EMPLOYERS.  141 

fore,  a  considerable  class  of  common  law  cases 
where  the  plaintiff  was  injured  by  a  defect  in  the 
ways,  works,  or  machinery,  in  which  the  fellow- 
servant  doctrine  still  afforded  a  complete  defence.1 
By  sweeping  away  that  defence  in  such  cases,2  it 
is  apprehended  that  this  clause  has  served,  not 
merely  to  codify  this  branch  of  the  common  law 
of  master  and  servant,  but  materially  to  extend 
the  liability  of  employers. 

"  BY   REASON    OF    ANY    DEFECT." 

§  131.  Relation  of  the  Defect  to  the  Injury.  —  In 
order  to  recover  under  this  clause  of  the  statute 
the  plaintiff  must  clearly  show  a  defect  in  the 
ways,  works,  or  machinery,  for  the  existence  of 
which  the  employer  is  made  responsible  by  its 
terms,  and  that  it  operated  as  a  cause  of  the  in- 
jury —  it  need  not  be  the  sole  cause.3  If,  there- 
fore, the  cause  of  the  accident  appears  upon  all  the 
evidence  to  be  wholly  conjectural,  the  action  can- 
not be  maintained  and  the  case  may  be  taken 
from  the  jury.4  And,  furthermore,  it  must  appear 
that  the  alleged  defect  was  the  direct  or  proximate 
cause  of  the  injury.  Hence  it  is  not  enough  to 
show  that  there  was  a  defect  for  the  existence  of 

Johnson  v.  Boston  Tow-Boat  Co.,  135  Mass.  209  (1883).  Ford  v. 
Fitchburg  Railroad,  110  Mass.  240,  259  (1872),  and  cases  cited. 

1  Johnson   v.   Boston   Tow-Boat  Co.,   135  Mass.   209    (1883). 
McGee  v.  Boston  Cordage  Co.,  139  Mass.  445  (1885). 

2  See§  118. 

8  Elmer  v.  Locke,  135  Mass.  575  (1883). 

4  Clare  v.  New  York  &  New  England  Railroad,  167  Mass.  39 
(1896).  Murphy  v.  Boston  &  Albany  Railroad,  167  Mass.  64  (1896). 


142          STATUTORY  TORTS   IN   MASSACHUSETTS. 

which  the  employer  was  responsible,  and  that  it 
had  something  to  do  with  the  accident :  it  must 
be  shown  also  that  it  contributed  thereto  directly 
or  proximately.1 

§  132.  What  Defects  come  -within  the  Clause.  — 
Not  every  defect  in  the  plant  or  appliances,  though 
it  be  the  legal  cause  of  an  injury  to  an  employee, 
is  a  defect  in  the  condition  of  the  ways,  works, 
or  machinery  within  the  meaning  of  this  clause. 
Legal  consequences  attach  under  the  statute,  as 
at  common  law,  only  to  those  defects  in  the  ways, 
works,  or  machinery  to  guard  against  which  a  duty 
rests  upon  the  employer.  If  there  be  any  defects 
of  such  a  nature  that  the  law  does  not  hold  an 
employer  bound  to  guard  against  them,  he  is  not 
liable  under  this  clause  for  injuries  due  to  them. 
It  has  been  held,  therefore,  that  since  in  general 
no  obligation  rests  upon  him  relative  to  temporary 
defects  that  arise  from  common-  and  short-lived 
causes,  such  faulty  conditions  do  not  constitute 
defects  within  this  clause.  Thus  the  dampness 
of  moulds  in  a  foundry,  which  caused  an  explosion 
of  the  melted  metal  that  was  poured  into  them, 
is  not  a  defect  within  the  meaning  of  this  part  of 
the  statute.2 

1  Brady  v.  Ludlow  Manufacturing  Co.,  154  Mass.  468  (1891). 

2  Whittaker  v.  Bent,  167  Mass.  588  (1897).    See  also  McCann 
v.  Kennedy,  167  Mass.  23  (1896). 

"There  are  many  transitory  risks  of  which  it  is  impracticable 
to  require  an  employer  to  give  notice  to  his  men,  although  no 
doubt,  if  the  risk  is  very  great  and  unusual,  the  fact  that  it  is 
short-lived  is  not  always  an  excuse."  Dictum,  Thompson  v. 
Norman  Paper  Company,  169  Mass.  416  (1897). 


THE   LIABILITY   OF  EMPLOYERS.  143 

S  133.  The  Presence  of  Extraneous  Substances 
as  a  Defect.  —  Objects  lying  upon  the  way,  which 
do  not  alter  its  fitness  for  the  purpose  for  which 
it  is  generally  used,  are  not  defects  in  the  way 
within  the  meaning  of  this  clause.1  It  has  been 
held,  thus,  that  the  mere  presence  of  rubbish  upon 
the  floor  of  a  house  in  the  process  of  construction 
was  not  a  defect.2  So  also  that  a  stone  which  was 
left  upon  a  staging,  said  staging  being  in  no  way 
defective,  and  which  fell  off  and  caused  the  injury, 
was  not  a  defect.3 

§  134.  The  Failure  to  supply  Safety  Contrivances 
as  a  Defect.  —  It  is  not  the  duty  of  an  employer 
to  furnish  the  latest  and  best  machinery  :  he  is 
only  bound  to  see  that  that  which  he  does  furnish 
is  safe  and  suitable.4  If,  therefore,  it  appears  upon 
the  evidence  that  a  machine  is  not  in  itself  defect- 
ive, but  is  in  the  same  condition  at  the  time  of 
the  accident  as  it  was  when  the  plaintiff  entered  the 
defendant's  employ,  the  mere  fact  that  certain  con- 
trivances which  would  have  rendered  the  machine 
more  safe,  had  not  been  put  upon  it,  does  not  con- 
stitute a  defect  in  the  condition  of  the  ways,  works, 
or  machinery  within  the  meaning  of  this  clause.6 

1  McGriffin  v.  Palmer's  Ship-building  Co.,  10  Q.  B.  D.  5  (1882). 

2  O'Connor  r.  Neal,  153  Mass.  281  (1891). 

3  Carroll  t;.  Willcntt,  163  Mass.  221  (1895). 

4  O'Malley  v.  South  Boston  Gas  Light  Co.,  158  Mass.  135,  137 
(1893),  semble.     Wood,  Master  and  Servant,  page  688. 

5  Ross  v.  Pearson  Cordage  Co.,  164  Mass.  257  (1895).     O'Connor 
v.  Whittall,  169  Mass.  563  (1897). 

Evidence,  therefore,  that  the  arrangement  of  the  machinery  ia 


144         STATUTORY  TORTS   IN  MASSACHUSETTS. 

§  135.  The  Negligent  Use  of  Safe  Appliances  as 
a  Defect. — The  negligent  use  of  a  proper  and  safe 
appliance  does  not  constitute  a  defect  in  the  con- 
dition of  the  ways,  works,  or  machinery  within  the 
meaning  of  the  clause.1 

§  136.  The  Unsuitableness  of  Safe  Appliances  as 
a  Defect.  —  In  order  to  show  a  defect  within  the 
meaning  of  this  clause,  the  plaintiff  is  not  neces- 
sarily required  to  prove  that  some  appliance  was 
out  of  order.  As  was  said  by  the  court  in  a  re- 
cent case:  "An  unsuitableness  of  ways,  works, 
or  machinery  for  work  intended  to  be  done  and 
actually  done  by  means  of  them,  is  a  defect  within 
the  meaning  of  statute  1887,  ch.  270,  s.  1,  cl.  1, 
although  the  ways,  works,  or  machinery  are  per- 
fect of  their  kind,  in  good  repair,  and  suitable 
for  some  work  done  in  the  employer's  business 
other  than  the  work  in  doing  which  their  un- 
suitableness causes  injury  to  the  workman."2  An 
appliance  that  was  perfect  and  suited  to  the  work 
to  which  it  was  put  at  the  time  when  it  was  pur- 
chased, may,  by  reason  of  its  long  use  and  the 
greater  strain  put  upon  it  because  of  the  develop- 

different  from  that  usually  made  in  other  like  establishments  is 
not  admissible.  French  v.  Columbia  Spinning  Co.,  169  Mass.  531 
(1897). 

1  O'Keefe  v.  Brownell,  156  Mass.  131  (1892). 

When  the  employer  has  supplied  the  necessary  materials  for 
rendering  safe  the  use  of  a  common  tool,  as  cleats  and  nails  for 
holding  in  place  a  movable  truck  while  in  use,  the  neglect  to  use 
those  materials  is  the  negligence  of  the  employee,  s.  c. 

2  Geloneck  ?;.  Dean  Steam  Pump  Co.,  165  Mass.  202,  217  (1896). 
Heske  t;.  Samuelson,   12  Q.  B.  D.  30  (1883),  accord. 


THE   LIABILITY   OF   EMPLOYERS.  145 

ment  of  the  business  in  which  it  is  used,  become 
in  time  unsuitable  for  that  same  use,  and  consti- 
tute a  defect  in  the  condition  of  the  ways,  works, 
or  machinery  within  the  above  rule.1 

Such  cases  are  to  be  distinguished,  of  course, 
from  those  where  the  employer  has  furnished  a 
supply  of  proper  appliances  for  the  work  to  be 
done,  but  the  employee  failed  to  select  and  use 
such  as  were  fitted  for  the  purpose.  In  these 
latter  cases  there  is  no  defect  for  which  the  em- 
ployer can  be  held  liable  under  the  act.2 

§  137.  A  Dangerous  Method  of  carrying  on  Busi- 
ness as  a  Defect.  —  It  has  not  been  decided  in 
Massachusetts  whether  a  dangerous  method  of 
carrying  on  the  employer's  business  constitutes 
a  defect  in  the  condition  of  the  ways,  works, 
or  machinery  within  the  meaning  of  this  clause. 
The  courts  in  England  have,  however,  passed 
upon  the  point,  taking  an  affirmative  view  of  the 
question.3  But  the  problem  is  not  one  of  primary 
importance,  since  a  prior  question  must  be  decided 
before  it  can  arise,  namely,  Did  not  the  plaintiff  as- 
sume the  risks  incident  to  such  dangerous  method  ? 
He  will  be  held  to  have  done  so  where  it  does  not 
appear  that  any  change  had  been  made  in  the 
mode  of  doing  the  business,  so  as  to  make  it  more 

1  Gnnn  v.  New  York,  etc.  Railroad,  171  Mass.  417  (1898). 

a  Alien  w.  Smith  Iron  Co.,  160  Mass.  557  (1894).  Thyng  v. 
Fitchburg  Railroad,  156  Mass.  13  (1892).  Trimble  v.  Whitier 
Machine  Works,  172  Mass.  150  (1898). 

8  Smith  v.  Baker,  [1891]  A.  C.  325. 
10 


146         STATUTORY  TORTS   IN   MASSACHUSETTS. 

dangerous,  after  he  entered   the  defendant's  em- 
ploy.1 

§  138.  Variance  in  Proof  of  Defect.  —  A  variance 
between  the  declaration  and  the  proof  as  to  the 
character  of  the  defect  is  not  fatal,  at  least  in 
cases  where  the  precise  nature  of  the  defect  is 
peculiarly  within  the  knowledge  of  the  defendant, 
provided  the  declaration  correctly  points  out  its 
general  nature.2 

"  IN   THE   CONDITION." 

§  139.  Construction  of  the  Phrase. — The  term 
"  defect  in  the  condition  of  the  ways,  works,  or 
machinery,"  it  may  be  observed,  is  of  somewhat 
broader  significance  than  is  the  shorter  phrase, 
"  defect  in  the  ways,  works,  or  machinery."  This 
fact  is  recognized  by  the  courts,3  and  opens  the 
way  to  a  liberal  construction  of  the  words  them- 
selves. The  emphasis  is  placed  upon  "  the  con- 
dition,"—  the  condition  relative  to  the  employee, — 
and  accordingly  it  is  held  that  the  words  do  not 
refer  to  working  capacity,  but  to  condition  with 
regard  to  the  safety  of  the  employees.2 

"OF   THE   WATS,  WORKS    OR   MACHINERY." 
§  140.      Paths  necessarily  used  as  a  Part    of    the 
Ways.  —  It  has  not  been  directly  decided  by  the 
Massachusetts  court  whether  or  not  the  path  that 

1  Caron  v.  Boston   &  Albany   Railroad,  164   Mass.  523,   530 
(1895). 

2  Willey  v.  Boston  Electric  Light  Co.,  168  Mass.  40  (1897). 

8  McGriffin  v.  Palmer's  Shipbuilding  Co.,  10  Q.  B.  I).  5  (1882). 
Willey  v.  Boston  Electric  Light  Co.,  168  Mass.  40,  42  (1897). 


THE   LIABILITY  OP  EMPLOYERS.  147 

an  employee  ordinarily  takes  in  order  to  pass  from 
one  part  of  the  shop  to  another,  which  passing 
back  and  forth  is  required  by  the  exigencies  of  his 
employment,  is  a  way  within  the  meaning  of  this 
clause.  In  Dolphin  v.  Plumley l  the  court  seems 
to  intimate  that  the  answer  to  the  question  would 
be  in  the  affirmative.  This  would  be  in  accord- 
ance with  the  English  view.2 

§  141.  Explosives  as  Part  of  the  Ways  or  Works. 
—  An  article  which  is  bought  by  the  employer  for 
a  specific  use  and  is  instantly  consumed  in  that 
use,  as  dynamite  used  for  blasting,  is  not  itself 
a  part  of  the  employer's  ways  or  works.3  Nor, 
having  failed  properly  to  explode  when  the  blast 
was  set  off,  does  it  become  a  defect  therein  so  that 
an  employee,  injured  by  its  subsequent  explosion 
while  trying  to  remove  the  charge,  can  recover 
under  this  clause.4  As  was  said  by  Mr.  Justice 
Knowlton,  speaking  in  a  recent  case4  of  a  car- 
tridge which  had  remained  undischarged  after  the 
blast  had  exploded  :  "  This  was  merely  a  condition 
of  the  material  upon  which  the  employees  were 
working,  caused  by  their  work,  and  necessarily 
incident  to  the  business  in  which  they  were  en- 
gaged. It  was  in  no  proper  sense  a  defect  in  the 
ways,  works,  or  machinery  of  the  defendant." 

§  142.      Partially  completed  and  Temporary  Struct- 

1  167  Mass.  167  (1896). 

2  Willetts  v.  Hart,  [1892]  2  Q.  B.  92. 

8  Shea  v.  Wellington,  163  Mass.  364,  369  (1895). 
*  Welch  v.  Grace,  167  Mass.  590,  592  (1897). 


148          STATUTORY  TORTS  IN  MASSACHUSETTS. 

urea  as  Part  of  the  Ways  or  Works.  —  The  English 
courts  have  held  distinctly  that  this  clause  does 
not  apply  to  partly  made  ways  or  works  upon  the 
employer's  premises,1  as  the  partially  constructed 
walls  of  a  warehouse,  which  was  being  built  upon 
the  employer's  land,  to  be  used  when  completed 
in  his  business.  This  decision  is  placed  upon  the 
ground  that  the  scope  of  the  clause  is  limited  to 
ways  or  works  actually  connected  with,  or  actually 
used  in,  the  business  of  the  employer;  which 
principle,  fairly  applied,  must  exclude  incomplete 
structures.2 

Upon  this  same  ground  the  Massachusetts  court 
has  held  that  this  clause  of  the  statute  does  not 
apply  to  temporary  structures  constructed  on  the 
premises  of  third  persons,  as  a  staging  built  up  as 
the  work  progressed  by  masons  who  were  engaged 
in  putting  up  a  building;3  or  a  staging  used  in 
painting  a  building.4  The  rule  in  these  cases  has 
been  applied  also  to  ladders  that  were  supplied  by 
the  employer,  but  were  fastened  together  by  the 
workmen  themselves  and  by  them  placed  against 
the  house  of  a  third  person,  which  they  were  en- 
gaged in  painting.6 

1  Howe  v.  Finch,  17  Q.  B.  D.  187  (1886). 

2  So  it  has  been  held  that  a  building  in  the  process  of  construc- 
tion upon  the  premises  of  a  third  person  was  not  a  part  of  the 
ways,  works,  or  machinery  of  the  sub-contractor  who  was  helping 
to  build  it.     Beique  ;-.  Hosmer,  169  Mass.  541  (1897). 

8  Burns  v.  Washburn,  160  Mass.  457  (1894).  Reynolds  v. 
Barnard,  168  Mass.  226  (1897). 

4  Adasken  v.  Gilbert,  165  Mass.  443,445  (1896). 

5  McKay  v.  Hand,  168  Mass.  270  (1897). 


THE  LIABILITY   OP   EMPLOYEES.  149 

The  case  of  Prendible  v.  Connecticut  River 
Manufacturing  Company 1  presents  an  apparent 
exception  to  the  rule  in  those  cases,  but  it  is  ap- 
parent only.  In  that  case  the  staging,  by  the  fall 
of  which  the  plaintiff  was  injured,  was  about  twenty 
feet  long  by  five  wide,  made  in  permanent  form, 
and  so  constructed  that  it  could  be  moved  bodily 
from  place  to  place  about  the  defendant's  premises 
as  the  work  required.  Because  it  was  a  perman- 
ent, though  movable,  structure  and  was  intended 
to  be  used  in  each  place  where  it  was  erected  for  a 
considerable  time,  the  court  held  that  it  was  a  part 
of  the  defendant's  ways,  works,  or  machinery.2  It 
was  plainly  as  much  a  part  of  the  permanent 
works  of  the  employer  as  the  defective  truck  in 
Geloneck  v.  Dean  Steam  Pump  Company,3  or  any 
similar  appliance. 

"CONNECTED  WITH  OR  USED  IN  THE  BUSINESS  OF  THE 
EMPLOYER." 

§  143.  "What  must  be  shown  under  this  Provi- 
sion. —  The  question  of  the  ownership  of  the  ways, 
works,  or  machinery  in  any  given  instance  affords 
little,  if  any,  direct  aid  in  determining  whether  or 
not  the  case  comes  within  the  meaning  of  these 
words.4  There  are,  however,  two  essential  elements 
found  in  every  case  within  the  clause,  which  furnish 

1  160  Mass.  131  (1893). 

2  See  Reynolds  v.  Barnard,  168  Mass.  226,  227  (1897). 
>  165  Mass.  202  (1896). 

4  Coffee  v.  New  York,  etc.  Railroad,  155  Mass.  21,  23  (1891). 
Bowers  v.  Connecticut  River  Railroad,  162  Mass.  312  (1894). 


150          STATUTORY  TORTS   IN   MASSACHUSETTS. 

a  decisive  test  upon  this  point.  Thus,  in  order  to 
bring  his  case  within  the  provision,  a  plaintiff  must 
show,  first,  that  the  defect  was  in  ways,  works,  or 
machinery  that  the  employer  had  expressly  or  im- 
pliedly  authorized  his  employees  to  use  in  carrying 
on  his  business;  and,  second,  that  the  employer 
had  the  control  over  them.1  The  rule  was  stated 
by  Mr.  Justice  Morton,  in  Trask  v.  Old  Colony 
Railroad,2  as  follows :  "  It  may  not  be  necessary, 
in  order  to  render  an  employer  liable  for  an  in- 
jury occurring  to  an  employee  through  a  defect 
in  the  ways,  works,  or  machinery,  that  they  should 
belong  to  him,  but  it  should  at  least  appear 
that  he  has  the  control  of  them,  and  that  they  are 
used  in  his  business,  by  his  authority,  express  or 
implied." 

§  144.  General  Application  of  the  Rule.  —  Both 
of  the  elements  above  referred  to  must  co-exist  — 
the  absence  of  either  is  fatal.  Therefore,  if  it  ap- 
pears that  the  employer  has  no  control  over  the 
ways,  works,  or  machinery,  although  he  authorized 
their  use,  they  are  not  ways,  works,  or  machinery 
connected  with  or  used  in  his  business  within  the 
meaning  of  this  clause.  It  has  been  held  upon 
this  ground  that  an  employer  was  not  liable  under 
the  act  for  an  injury  resulting  to  his  employee 
from  a  defect  in  a  track  owned  and  controlled  by 
another  company,  which  connected  with  its  own,3 

1  Trask  v.  Old  Colony  Railroad,  156  Mass.  298  (1892). 

2  156  Mass.  298  (1892),  at  page  303. 

8  Engel  v.  New  York,  etc.  Railroad,  160  Mass.  260  (1893). 


THE  LIABILITY  OP   EMPLOYERS.  151 

even  though  the  defect  was  at  the  very  point  of 
connection  ; 1  nor,  again,  for  a  defect  in  the  premises 
of  a  third  person,  where  he  had  sent  his  employee  to 
work.2  In  Eiigel  v.  New  York,  etc.  Railroad,3  the 
court  says  upon  this  point :  "  Neither  the  language 
of  the  statute  nor  good  sense  would  permit  us  to 
hold  an  employer  liable  under  the  act  for  defects 
which  he  cannot  help,  in  a  place  out  of  his  control, 
to  which  his  employees  once  in  a  while  may  be 
called  for  a  few  minutes." 

So  also,  on  the  other  hand,  if  it  appears  that  the 
article  was  used  without  the  authority  of  the  em- 
ployer, although  it  was  under  his  control,  the  case 
does  not  come  within  the  clause.  Thus  it  has 
been  held  that  an  employer  was  not  liable  under 
the  act  for  an  injury  occurring  to  an  employee  by 
reason  of  a  defect  in  a  ladder  wnich  had  been 
borrowed  without  the  knowledge  of  the  employer 
and  brought  upon  his  premises,  and  was  being 
used  in  his  business  without  his  authority.4 

§  145.  Application  of  the  Rule  to  Foreign  Cars.  — 
It  is  the  accepted  construction  that  cars  coming 
from,  and  owned  by,  other  railroads,  which  are  to 
be  hauled  over  the  defendant's  road,  in  the  due 
course  of  its  business,  for  the  transportation  of  the 
freight  contained  therein,  are  a  part  of  its  ways, 
works,  or  machinery  within  the  meaning  of  this 

1  Trask  v.  Old  Colony  Railroad,  156  Mass.  298  (1892). 

2  Regan  v.  Donovan,  159  Mass.  1,  3  (1891). 
8  160  Mass.  260  (1893),  at  page  261. 

*  Jones  v.  Burford,  1  Times  Law  Reports,  137  (1884). 


152          STATUTORY   TORTS   IN   MASSACHUSETTS. 

clause.1  In  the  application  of  this  rule,  however, 
a  distinction  was  made  in  the  case  of  a  car  which 
had  delivered  its  freight  and  had  been  returned  to 
the  yard  at  the  defendant's  terminus,  where,  hav- 
ing been  shunted  off  from  the  rest  of  the  train,  it 
was  running  by  itself,  when  the  accident  happened, 
to  a  position  where  it  could  be  re-delivered  to  its 
owner.2  Such  an  isolated,  empty  car,  it  was  held, 
could  not  fairly  be  considered  to  be  an  appliance 
furnished  by  the  employer  for  the  carrying  on  of 
its  business.  The  provisions  of  the  amendment 
of  1893 3  seem  to  have  sufficiently  broadened  the 
general  rule  of  construction  to  eliminate  this  dis- 
tinction. 

"  WHICH  AROSE  FROM." 

§  146.  Effect  of  the  Provision.  —  These  words 
place  no  new  or  additional  burden  upon  the  em- 
ployee. He  must  show  under  the  statute,  as  at 
common  law,  that  the  defect  which  caused  the 
injury  owed  its  existence  to  the  breach  of  a  duty 
on  the  part  of  the  employer,  —  to  the  breach  of  a 
duty  owed  to  himself.  But  the  act  has  extended 
the  duties  of  employers,  and  has  thus,  of  course, 

1  Bowers  v.  Connecticut  River  Railroad,  162  Mass.  312  (1894). 

2  Coffee  v.  New  York,  etc.  Railroad,  155  Mass.  21  (1891). 

s  St.  1893,  ch.  359,  s.  1,  amending  St.  1887,  ch.  270,  s.  1,  as 
amended  by  St.  1892,  ch.  260,  by  adding  at  the  end  thereof  the 
following  words  :  "  A  car  in  use  by  or  in  the  possession  of  a  rail 
road  company  shall  be  considered  a  part  of  the  ways,  works  or 
machinery  of  the  company  using  or  having  the  same  in  possession, 
within  the  meaning  of  this  act,  whether  such  car  is  owned  by  it  or 
by  some  other  company  or  person." 


THE   LIABILITY   OF   EMPLOYERS.  153 

made  possible  new  breaches  of  duty,  of  which  the 
employee  can  avail  himself.1 

"  OR   HAD    NOT   BEEN   DISCOVERED    OR   REMEDIED." 

§  147.  Discovered  or  remedied.  —  The  mere  fact 
that  there  was  a  defect  and  that  it  was  the  legal 
cause  of  an  injury  is  not  enough,  by  reason  of  the 
requirements  of  this  provision,  to  fix  the  liability 
under  this  clause.  It  must  further  appear  that 
the  defect  was  of  such  a  nature  that  the  employer 
or  the  person  intrusted  by  him  with  that  duty 
might  have  discovered  and  removed  it.  Moreover, 
although  the  word  "  or  "  is  used  in  the  provision,  — 
discovered  or  remedied,  —  evidence  going  to  show 
that  the  employer  might  have  discovered  the  dan- 
gerous condition  will  not  sustain  the  burden  of 
proof  upon  this  point,  if  it  also  appears  that  he 
had  not  the  right  to  remedy  it.2  The  power  to 
discover  and  the  right  to  remedy  must  be  shown 
to  have  coexisted. 

§  148.  Remedied.  —  This  word  as  here  used  is 
given  a  liberal,  and  at  the  same  time  somewhat 
unusual,  meaning.  The  object  of  the  clause  is  obvi- 
ously to  impose  a  liability  where  an  injury  results 
from  a  danger  that  might  have  been  removed,  but 
was  not,  owing  to  negligence.  This  consideration 
furnishes  a  key  to  the  interpretation  that  has  been 
adopted.  Remedied  "  does  not  mean  that  the 
machine  must  have  been  made  perfect  for  working 

1  McPhee  r.  Scully,  163  Mass.  216  (1895). 

8  Engel  i?.  New  York,  etc.  Railroad,  160  Mass.  260  (1893). 


15-1          STATUTORY  TORTS  IN  MASSACHUSETTS. 

purposes,  but  that  its  dangerous  condition  must 
have  been  ended."  Any  device,  whether  of  a 
temporary  or  a  permanent  nature,  that  will  bring 
about  such  a  result,  will  satisfy  this  meaning.1 

4 '  OWING  TO  THE  NEGLIGENCE  OF  THE  EMPLOYER." 

§  149.  The  Duty  to  furnish  and  maintain  Safe 
Appliances.  — -This  clause  of  the  statute  has  made 
no  change  in  the  common  law  duties  of  employers : 
whatever  was  negligence  on  the  part  of  the  em- 
ployer at  common  law,  is  negligence  on  the  part 
of  the  employer  under  the  act.  He  is  bound, 
therefore,  to  use  reasonable  care  both  in  furnishing 
ways,  works,  and  machinery  safe  and  suitable  for 
the  work  to  be  done,  and  in  keeping  them  in  proper 
condition.2 

This  duty  has,  however,  certain  recognized 
limits ;  it  is  not  every  failure  to  provide  safe 
appliances  or  to  keep  them  in  proper  order  that 
will  render  an  employer  liable  under  this  clause.3 
Thus  "  the  absolute  obligation  of  an  employer  to 
see  that  due  care  is  used  to  provide  safe  appliances 
for  his  workmen  is  not  extended  to  all  the  passing 
risks  which  arise  from  short  lived  causes,"  such, 
for  instance,  as  the  dampness  of  moulds  used  in  a 
foundry.4  And  again,  this  duty  does  not  require 

1  Willey  v.  Boston  Electric  Light  Co.,  168  Mass.  40,  42  (1897). 

2  Holden  v.  Fitchburg  Railroad,   129  Mass.   268  (1880),  and 
cases  cited. 

8  McCann  v.  Kennedy,  167  Mass.  23  (1896).  Whittaker  v. 
Bent,  167  Mass.  588  (1897). 

1  Whittaker  v.  Bent,  167  Mass.  588,  589  (1897). 


THE  LIABILITY   OF   EMPLOYERS.  155 

the  employer  to  adopt  the  latest  improvements  in 
machinery,1  nor  to  make  use  of  new  contrivances, 
even  though,  if  adopted,  they  would  render  his 
ways,  works,  or  machinery  more  safe.2  Moreover, 
when  he  has  once  furnished  safe  and  proper 
appliances  for  the  conduct  of  his  business,  he  is 
under  no  obligation  to  see  that  they  are  used,  and 
consequently  is  not  responsible  in  damages  to  an 
employee  who  is  injured  through  a  failure  to  use 
them.3 

§  150.  The  Duty  of  inspection.  —  An  employer 
is  bound  to  use  reasonable  care  and  diligence  in 
order  to  discover  any  defects  that  may  exist  in 
his  ways,  works,  or  machinery  :  he  is  not  an  insurer 
of  their  condition,  and  cannot  be  held  responsible 
for  hidden  defects  in  them  that  could  not  be  dis- 
covered by  the  most  careful  inspection.4  This 
common  law  rule  is  expressly  retained  under  the 
act ;  the  employer  is  made  liable  by  its  terms  only 
for  defects  that  "had  not  been  discovered  or  rem- 
edied "  by  reason  of  his  negligence.  He  is  not, 
therefore,  liable  in  an  action  based  upon  the  statute 
for  defects  in  the  original  construction  of  works 

1  See  O'Maley  v.  South  Boston  Gas  Light  Co.,  158  Mass.  135, 
137  (1893). 

2  Ross  v.  Pearson  Cordage  Co.,  164  Mass.  257  (1895).    Gleason 
v.  New  York,  etc.  Railroad,  159  Mass.  68  (1893),  semble.     Fisk  v. 
Fitchburg  Railroad,  158  Mass.  238  (1893),  semble. 

»  Allen  v.  Smith  Iron  Co.,  160  Mass.  557  (1894). 

4  Ladd  v.  New  Bedford  Railroad  Co.,  119  Mass.  412  (1876), 
point  1,  and  cases  cited.  Spicer  v.  South  Boston  Iron  Co.,  138 
Mass.  426  (1885). 


156          STATUTORY  TORTS  IN  MASSACHUSETTS. 

or  machinery  which  belong  to  third  parties  but 
which  become  temporarily  a  part  of  his  works  or 
machinery,  as  cars  received  from  other  railroads, 
provided  he  has  used  reasonable  care  to  inspect 
them  and  to  discover  the  defects.1 

In  this  connection  it  is  to  be  remembered  that 
the  negligence  of  the  car  inspector  is,  under  the 
act,  the  negligence  of  the  employer,  since  he  is 
the  person  intrusted  by  the  latter  with  the  per- 
formance of  this  duty. 

' '  OR  OF  ANY  PERSON  IN  THE  SERVICE  OF  THE  EM- 
PLOYER AND  ENTRUSTED  BY  HIM  WITH  THE  DUTY  OF 
SEEING  THAT  THE  WAYS,  WORKS  OR  MACHINERr  WERE 
IN  PROPER  CONDITION." 

§  151.  The  Provision  enlarges  the  Common  Law 
Liability.  —  The  plain  result  of  this  provision  is  an 
extension  of  the  common  law  liability  of  employers. 
This  is  brought  about  by  making  the  employer 
stand  in  the  shoes  of  the  employee  whom  he  has 
charged  with  the  performance  of  the  particular 
duty  here  specified.  In  other  words,  a  right  of 
action  which  at  common  law  existed  only  against 
the  negligent  employee,  is  turned  against  the  em- 

1  Thyng  v.  Fitchburg  Railroad,  156  Mass.  13  (1892). 

Likewise,  it  is  the  employer's  duty,  when  he  sets  an  employee 
to  work  in  a  place  of  danger,  to  give  him  such  notice  and  in- 
struction as  may  reasonably  be  necessary,  taking  into  consideration 
the  youth,  inexperience,  or  want  of  capacity  of  the  employee ;  and 
if  he  fails  to  so  do,  he  is  responsible  for  the  injury  suffered  in 
consequence  of  such  neglect.  Atkins  v.  Merrick  Thread  Co.,  142 
Mass.  431  (1886);  and  see,  also,  Sullivan  v.  India  Manufacturing 
Co.,  113  Mass.  396  (1873). 


THE   LIABILITY   OF   EMPLOYERS.  157 

plover.  This  operation  of  the  clause,  it  may  be 
observed,  does  not  extend  beyond  those  cases  that 
fairly  come  within  the  terms  of  this  provision.1 
Only  the  negligence  of  the  particular  employees 
charged  therewith,  occurring  in  the  course  of  the 
performance  of  the  single  duty  of  seeing  that  the 
ways,  works,  or  machinery  were  in  proper  condi- 
tion, is  made  the  negligence  of  the  employer ;  all 
other  classes  of  negligent  acts  of  which  employees 
may  be  guilty  are  left  on  the  old  common  law  foot- 
ing. Thus  no  action  can  be  maintained  under  this 
clause  for  an  injury  due  to  the  negligence  of  a 
fellow  employee  in  using  appliances  that  were  in 
proper  condition.2 

§  152.  Person  intrusted.  —  This  provision  of  the 
clause  is  silent  as  to  the  grade  of  the  employee  who 
may  be  intrusted  with  the  duty  therein  specified. 
Whether  it  be  inferior  or  superior  to  that  of  the 
injured  employee  seems,  therefore,  to  be  wholly 
immaterial.  Moreover,  there  is  nothing  in  the 
wording  of  the  provision  to  require  the  construc- 
tion that  the  duty  of  seeing  that  the  ways,  works, 
or  machinery  were  in.  proper  condition  should  be 
his  sole  duty  ;  it  may  well  be  only  a  part,  even  a 
very  small  part,  of  his  duty.  But  the  essential 
thing  is  that  the  employee  should  be  intrusted 
by  the  employer  with  the  performance  of  this  par- 

1  See  §§  118  and  130,  ante. 

2  Ashley  v.  Hart,  147  Mass.  573  (1888). 

For  suggestions  as  to  the  form  of  declarations  under  this  first 
clause,  see  Conroy  v.  Clinton,  158  Mass.  318  (1893).  Bowers  v. 
Connecticut  River  Railroad,  162  Mass.  312  (1894). 


158          STATUTORY  TORTS  IN  MASSACHUSETTS. 

ticular  duty — should  be  a  person  selected  to  hold 
this  position  of  responsibility. 

SECTION  1,  CLAUSE  2.  By  reason  of  the  negligence 
of  any  person  in  the  service  of  the  employer,  entrusted 
•with  and  exercising  superintendence,  whose  sole  or 
principal  duty  is  that  of  superintendence,  or,  in  the 
absence  of  such  superintendent,  of  any  person  acting 
as  superintendent  with  the  authority  or  consent  of 
such  employer ;  or l 

§  153.  General  Effect  of  the  Clause.  —  The  duty 
of  an  employer  relative  to  superintendence,  at  com- 
mon law,  is  simply  to  select  and  retain  in  his  ser- 
vice a  man  competent  to  oversee  his  work.  He  is 
bound  to  exercise  due  care  and  diligence  in  mak- 
ing such  selection  and  retention,  but  with  that  his 
obligation  ceases ;  he  is  not  an  insurer  of  the  com- 
petence of  the  man  so  selected  and  retained.2  The 
sole  ground  of  common  law  liability  in  this  direc- 
tion, therefore,  is  a  failure  to  use  reasonable  care 
and  diligence  in  these  two  particulars ;  since  the 
superintendent  and  the  employee  under  him  are 
fellow  servants,3  the  doctrine  of  common  employ- 
ment relieved  the  employer  from  all  legal  responsi- 
bility to  his  employees  for  the  superintendent's 
negligent  acts.4 

1  The  clause  is  here  given  as  amended  by  Acts  1894,  ch.  499. 

2  Tarrant  v.  Webb,  18  C.  B.  797. 

s  See  Kogers  v.  Lndlow  Manufacturing  Co.,  144  Mass.  198,  203 
(1887). 

*  Zeigler  v.  Day,  123  Mass.  152  (1877).  Floyd  v.  Sugdeu,  134 
Mass.  563  (1883). 


THE   LIABILITY   OP   EMPLOYERS  159 

The  provisions  of  the  second  clause  of  this  sec- 
tion have  revolutionized  this  branch  of  the  com- 
mon law  of  master  and  servant,  in  the  cases  to 
which  they  apply.  The  obvious  purpose  was  to 
prevent  the  employer  from  freeing  himself  from 
all  further  liability  by  appointing  a  competent  man 
to  take  charge  of  his  business.1  This  purpose  is 
accomplished,  as  was  the  case  with  the  preceding 
clause,  by  making  the  employer  directly  liable  for 
the  negligent  acts  of  the  person  "  entrusted  with 
and  exercising  superintendence,  whose  sole  or 
principal  duty  is  that  of  superintendence,"  thus 
incidentally  abolishing  the  fundamental  principle 
upon  which  his  immunity  at  common  law  in  such 
cases  rested.  The  net  result  of  the  operation  of 
the  clause  is,  then,  that  the  superintendent  is  no 
longer  to  be  regarded  as  the  fellow  servant  of  the 
employees  under  him,  in  those  cases  that  come 
within  the  statute,  but  as  the  personal  representa- 
tive of  the  employer,  who  stands  in  his  place  and 
performs  his  duties. 

"  By  REASON  OF  THE  NEGLIGENCE  OF  ANY  PERSON  IN 
THE  SERVICE  OF  THE  EMPLOYER." 

§  154.  The  Negligence  of  the  Superintendent.  — 
What  is  negligence  on  the  part  of  a  superintendent 
under  this  clause  is,  of  course,  to  be  determined 
according  to  common  law  principles.  It  may  be 
sufficient,  therefore,  to  simply  state  the  general 
proposition  that  the  negligent  acts  of  a  superin- 

1  Malcolm  v.  Fuller,  152  Mass.  160,  165  (1890). 


160          STATUTORY  TORTS  IN  MASSACHUSETTS. 

tendent,  for  which  the  employer  can  be  held  liable, 
are  of  two  kinds :  first,  they  may  consist  of  some 
positive  negligent  acts,  as  the  giving  of  an  im- 
proper order, 1  or  the  continuing  of  the  work  under 
dangerous  conditions;2  or,  second,  they  may  con- 
sist of  a  failure  to  act  under  circumstances  that 
called  for  some  positive  action  of  a  precautionary 
nature.3 

§  155.  The  Negligence  of  the  Superintendent  need 
not  be  the  Sole  Cause  of  the  Injury.  —  In  order  to 
recover  for  the  negligence  of  the  superintendent 
under  this  clause,  it  is  not  necessary  to  show  that 
it  was  the  sole  cause  of  the  accident.  An  employer 
cannot,  therefore,  escape  liability  under  the  act 
for  the  negligence  of  his  superintendent  by  show- 
ing that  acts  of  his  own  also  contributed  to  the 
injury.4 

"  ENTRUSTED  WITH  AND  EXERCISING  SUPERINTEND- 
ENCE." 

§  156.  What  is  a  Superintendent.  —  For  the  pur- 
poses of  this  statute,  a  superintendent  has  been 
defined  as  "  a  man  having  the  control,  with  the 
power  of  authority.  That  is  to  say,  when  he 
speaks,  the  workmen  are  to  obey,  not  because  he 
advises  them,  or  requests  them,  or  hopes  they  will, 
but  because,  by  virtue  of  his  position,  they  have 

1  McPhee  v.  Scully,  163  Mass.  216,  218  (1895). 

2  Connolly  v.  Waltham,  156  Mass.  368, 370  (1892). 

8  McCauley  v.  Norcross,  155  Mass.  584  (1892).  Carroll  v. 
Willcntt,  163  Mass.  221,  224  (1895). 

4  Connolly  v.  Waltham,  156  Mass.  368  (1892),  point  1. 


THE   LIABILITY   OF   EMPLOYERS.  161 

agreed  to  obey  him.  That  is  the  nature  of  his 
authority.  He  is  entitled  to  obedience."  1  It  has 
been  held,  accordingly,  that  an  ordinary  weaver, 
whose  usual  work  was  to  operate  a  loom,  was  not 
a  superintendent  within  the  meaning  of  the  statute, 
merely  because  it  was  also  a  part  of  her  duty  to 
notify  the  loom-fixer  when  her  loom  was  out  of 
repair.2 

§  157.  He  must  be  the  Person  intrusted  with 
Superintendence.  —  In  order  to  charge  an  employer 
with  the  negligence  of  a  third  person  under  this 
clause,  it  is  not  enough  to  show  simply  that  such 
person  was,  at  the  time  of  the  negligent  act,  over- 
seeing workmen  who  were  engaged  in  doing  work 
for  the  defendant  upon  his  premises.3  There  must 
be  some  evidence  tending  to  show  that  he  was  the 
person  intrusted  by  the  employer  with  the  super- 
intendence of  those  workmen.  The  average  case 
presents  little  or  no  difficulty  upon  this  point, 
but  there  is  a  somewhat  perplexing  class  of  cases 
where  it  is  not  clear  upon  the  facts  whether  the 
position  of  the  third  person  with  reference  to  the 
defendant  is  that  of  an  independent  contractor,  or 
of  a  person  intrusted  with  superintendence.4  A 
decisive  test  for  the  determination  of  the  point  in 
that  class  of  cases  is :  Whether,  upon  all  the 

1  Per  Mr.  Justice  Hammond  in  his  charge  to  the  jury,  Malcolm 
v.  Fuller,  152  Mass.  160,  163  (1890). 

2  Roseback  v.  Aetna  Mills,  158  Mass.  379  (1893). 

8  See  Dane  r.  Cochrane  Chemical  Co.,  164  Mass.  453  (1895). 
*  Dane  v.  Cochrane  Chemical  Co.,  164  Mass.  453  (1895). 
.11 


162          STATUTORY  TORTS   IN   MASSACHUSETTS. 

evidence,  the  relation  between  the  plaintiff l  and 
the  defendant  was  that  of  employer  and  employee. 
That  this  element  of  being  "  entrusted  with  " 
superintendence  was  wanting  appears  to  be  the 
real  ground  of  the  decision  in  the  case  of  Dane  v. 
Cochrane  Chemical  Co.2  That  was  a  case  where 
the  plaintiff,  the  workman,  was  injured  by  the 
negligent  act  of  A,  the  person  who  had  charge  of 
the  work,  and  sought  to  hold  the  defendant  re- 
sponsible for  the  consequences  of  that  negligence. 
It  appeared  in  evidence  that  the  defendant  em- 
ployed A,  under  a  continuing  contract,  to  do  all  of 
the  work  of  a  certain  kind  upon  its  premises,  and 
paid  him  so  much  therefor  in  addition  to  the  pay 
of  each  man  that  he  hired  to  perform  the  labor ; 
that  the  defendant  furnished  the  materials  for  the 
work  and  gave  to  A  all  the  necessary  directions 
for  its  performance,  but  left  him  entirely  free  to 
employ  his  own  workmen,  of  whom  the  plaintiff 
was  one,  to  superintend,  pay,  and  discharge  them 
as  he  saw  fit ;  that  the  defendant  kept  all  of  its 
accounts  with  A,  and  none  with  the  workmen ;  it 
was  held  that  the  defendant  was  not  liable  under 
this  clause  for  the  negligence  of  A,  on  the  ground 
that  the  facts  failed  to  establish  the  relation  of 
employer  and  employee  between  the  plaintiff  and 
the  defendant.  In  other  words,  the  defendant  had 
never  intrusted  A  with  any  superintendence  over 
the  plaintiff  as  one  of  its  employees. 

1  The  plaintiff  in  the  case  being,  of  course,  the  injured  workman. 

2  164  Mass.  453  (1895). 


THE   LIABILITY   OP   EMPLOYERS.  163 

Qucere,  whether  an  employer  would  be  liable 
for  the  negligence  of  his  foreman  in  doing  an  act 
that  was  properly  one  of  superintendence,  but  was 
outside  the  scope  of  the  superintendence,  which  had 
been  intrusted  to  him.1  The  fair  meaning  of  the 
words  "  intrusted  with  "  as  here  used  would  seem 
to  favor  a  negative  view  of  the  question.  And  the 
justice  of  such  a  construction  is  apparent  when  it 
is  considered  that  a  superintendent  is  selected 
with  reference  to  his  fitness  for  the  duties  that  he 
is  employed  to  perform,  and  that  he  may  have  no 
qualifications  for  overseeing  other  matters  which 
may,  incidentally  or  otherwise,  be  a  part  of  the 
employer's  business,  and  which  he  may,  purely  as 
a  volunteer,  undertake  to  superintend.2 

§  158.  He  must  be  a  Person  exercising  Superin- 
tendence.—  To  meet  the  requirements  of  this  pro- 
vision of  the  clause,  the  negligence  of  the  third 
person  must  occur  while  he  is  actually  in  the 
exercise  of  the  superintendence  with  which  he  has 
been  intrusted.3  In  other  words,  the  negligent 
act  must  be  not  only  the  act  of  a  person  intrusted 

1  Mahoney  v.  New  York,  etc.  Railroad,  160  Mass.  573  (1894), 
appears  to  have  been  such  a  case ;  this  particular  point  was  not 
raised,  however. 

2  The  discussion  in  Shea  v.  Wellington,   163   Mass.  364,   370 
(1895),  upon  a  kindred  topic,  may  serve  to  throw  light  upon  this 
question  also. 

Whether  the  plaintiff's  injury  was  due  to  the  negligence  of  a 
"person  in  the  service  of  the  employer,  intrusted  with  and  exercis- 
ing superintendence,"  is  a  question  for  the  jury.  See  Cavagnaro  v. 
Clark,  171  Mass.  359,  365  (1898). 

8  Cashman  v.  Chase,  156  Mass.  342  (1892). 


164          STATUTORY   TORTS  IN   MASSACHUSETTS. 

with  superintendence,  but  itself  an  act  of  superin- 
tendence. As  was  said  by  Mr.  Justice  Barker 
in  Cashman  v.  Chase : 1  "  The  employer  is  not 
answerable  for  the  negligence  of  a  person  in- 
trusted with  superintendence,  who  at  the  time, 
and  in  doing  the  act  complained  of,  is  not  ex- 
ercising superintendence,  but  is  engaged  in  mere 
manual  labor,  the  duty  of  a  common  workman. 
The  law  recognizes  that  an  employee  may  have  two 
duties  :  that  he  may  be  a  superintendent  for  some 
purposes,  and  also  an  ordinary  workman,  and  that 
if  negligent  in  the  latter  capacity  the  employer 
is  not  answerable.  Unless  the  act  itself  is  one 
of  direction  or  of  oversight,  tending  to  control 
others  and  to  vary  their  situation  or  action  because 
of  his  direction,  it  cannot  fairly  be  said  to  be  one 
in  the  doing  of  which  the  person  intrusted  with 
superintendence  is  in  the  exercise  of  superintend- 
ence." 

Whether  or  not  the  superintendent  was  exercis- 
ing superintendence  in  the  act  that  caused  the 
injury  may  be  a  question  for  the  jury  to  determine.2 

"  WHOSE    SOLE    OR    PRINCIPAL    DUTY    is    THAT    OF 

SUPERINTENDENCE." 

§  159.  Sole  or  Principal  Duty.  —  Assuming  that 
a  plaintiff  has  established  the  point  that  the  negli- 
gent third  person  was  a  superintendent  within  this 
clause,  then  comes  the  inquiry :  Was  superintend- 
ence his.  sole  or  principal  duty  ?  It  is  to  be  noticed 

1  156  Mass.  342,  at  page  344  (1892). 

2  See  Green  v.  Smith,  169  Mass.  485,  491  (1897). 


THE   LIABILITY   OP   EMPLOYERS.  165 

that  the  descriptive  words  of  this  phrase  are  used 
ill  the  alternative.  Provision  is  thus  made  for 
two  classes  of  cases :  the  one  where  it  appears 
upon  the  evidence  that  superintendence  was  the 
sole  duty  of  the  person  intrusted  with  and  exer- 
cising it ;  the  other  where  it  appears  that  super- 
intendence was  his  principal  duty. 

According  to  the  interpretation  put  upon  them 
by  the  court,  the  words  "  principal  duty  "  mean 
chief  duty  in  point  of  time,  rather  than  highest 
duty  in  point  of  grade.1 

§  160.  Superintendence  as  a  Sole  Duty.  • — 
Whether  or  not  superintendence  is  a  sole  duty 
appears  to  depend  altogether  upon  the  commission 
that  is  given  to  the  superintendent.  What  is  his 
employment  ?  What  is  expected  of  him  ?  If  he 
is  hired  solely  to  oversee  the  work  that  is  to  be 
done,  and  no  manual  labor  is  expected  of  him, 
then  it  would  seem  that  superintendence  is  his 
sole  duty  within  the  meaning  of  this  provision, 
even  though,  simply  as  a  volunteer,  he  occasionally 
does  acts  of  manual  labor ;  but  otherwise  if  he  is 
also  required  to  do  manual  labor. 

A  consequence  of  the  establishment  of  the  fact 
that  superintendence  was  the  foreman's  sole  duty 
is  that  no  question  can  be  raised  in  such  a  case 
as  to  the  capacity  in  which  he  acts  when  he  gives 
directions  to  the  workmen  in  the  course  of  the 
business.  He  is  at  no  time  a  common  workman, 
but  at  all  times  a  superintendent.  Therefore, 

1  See  O'Neil  v.  O'Leary,  164  Mass.  387,  390  (1895). 


166          STATUTORY   TORTS  IN   MASSACHUSETTS. 

when  he  gives  directions  as  to  the  work,  they  are 
always  more  than  mere  assurances  of  a  fellow 
workman ;  it  is  not  possible  to  interpret  them 
otherwise  than  as  the  orders  of  a  superintendent. 
Hence  if  superintendence  is  the  foreman's  sole 
duty,  the  employer  is  answerable  under  this  clause 
for  all  of  his  directions  to  the  workmen  in  the 
course  of  the  business  that  are  negligently  given, 
and  as  well  for  all  that  are  negligently  omitted  under 
circumstances  that  called  for  some  positive  orders.1 
§  161.  Superintendence  as  a  Principal  Duty.  — 
If  it  appears  upon  the  evidence  in  any  given  case 
that  the  superintendent  was  expected  not  only  to 
oversee  the  work,  but  also  to  do  manual  labor, 
then  comes  the  question  whether  or  not  superin- 
tendence was  his  principal  .duty.  To  bring  a 
case  within  the  provision  as  it  is  interpreted  by 
the  court,2  it  is  clear  that  it  is  not  enough  to  show 
that  he  was  at  the  time  of  the  accident  performing 
acts  usually  done  by  a  superintendent,  which  it 
was  a  part  of  his  duty  to  perform.  On  the  other 
hand  it  is  perhaps  equally  clear  that  evidence 
tending  to  show  that  he  also  performed  manual 
labor  is  not  conclusive  against  the  plaintiff.8  The 
vital  question  is :  How  much  manual  labor,  in 
point  of  the  time  spent  upon  it,  was  he  required 
to  perform  ?  Upon  one  side  or  the  other  of  this 
question,  all  of  the  cases  range  themselves.  Thus, 

1  Cavagnaro  v.  Clark,  171  Mass.  359,  point  2  (1898). 

2  See  §  159,  ante,  second  paragraph. 

8  Reynolds  v.  Barnard,  168  Mass.  226,  point  2  (1897). 


THE   LIABILITY   OF   EMPLOYERS.  167 

if  it  appears  that  a  man  is  set  to  work  with  a  gang 
of  men,  and  is  expected  to  do  his  share  of  the 
manual  labor,  he  is  held  not  to  be  a  person  whose 
principal  duty  is  that  of  superintendence  within  the 
meaning  of  this  clause,  even  though  it  is  also  a 
part  of  his  duty  to  perform  some  acts  that  are  con- 
sistent with  superintendence.1  But  if,  on  the  other 
hand,  a  man  is  placed  in  charge  of  a  gang  of  work- 
men, and  is  expected  to  determine  the  manner  in 
which  they  shall  do  the  work  and  to  direct  them  as 
to  it,  he  is  a  person  whose  principal  duty  is  super- 
intendence, although  he  may  at  times  take  hold 
with  his  own  hands  and  assist  in  the  perform- 
ance of  the  manual  labor.2 

Whether  or  not  superintendence  was  his  prin- 
cipal duty  is,  therefore,  a  question  of  fact  for  the 
jury  to  decide  upon  all  the  evidence  in  the  case.3 

1  Cashman  v.  Chase,  156  Mass.  342  (1892).    O'Connor  v.  Neal, 
153  Mass.  281,  283  (1891).     Malcolm  v.  Fuller,  152  Mass.  160,  163 
(1890),  semble.     O'Brien  v.  Eideout,  161  Mass.  170  (1894).     Dowd 
v,  Boston  &  Albany   Railroad,  162  Mass.  185   (1894).     O'Neal  v. 
O'Leary,    164  Mass.  387,  389    (1895).     Adasken   v.  Gilbert,  165 
Mass.  443,  445  (1896).     Roseback  v.  Aetna  Mills,  158  Mass.  379 
(1893).      Cunningham  v.   Lynn   &  Boston   Street   Railway,  170 
Mass.  298(1898). 

2  Malcolm  v.  Fuller,   152   Mass.   160   (1890).    Davis  v.  New 
York,   New  Haven,   etc.   Railroad,   159    Mass.   532,   535    (1893). 
Prendible  v.   Connecticut  River  Manuf.  Co.,  160  Mass.  131,  138 
(1893).    Gardner  r.  New  England  Telephone,  etc.  Co.,  170  Mass. 
156    (1898).     O'Brien  v.   Look,    171    Mass.   36   (1898).     Riou  v. 
Rockport  Granite  Co.,  171  Mass.  162  (1898). 

3  Geloneek  v.  Dean  Steam  Pump  Co.,  165  Mass.  202,216  (1896). 
Crowley  v.  Cutting,  165  Mass.  436  (1896).    Malcolm  v.  Fuller, 
152  Mass.  160  (1890).    As  to  the  wages  paid  to  the  alleged  super- 


168         STATUTORY  TORTS  IN   MASSACHUSETTS. 

Although  it  appears  upon  all  the  evidence  that 
superintendence  was  the  foreman's  principal  duty, 
there  are  still  one  or  two  questions  that  may  affect 
the  employer's  liability  for  his  negligent  acts. 
First,  in  what  capacity  was  he  acting  when  he  did 
the  negligent  act  ?  In  his  capacity  as  a  superin- 
tendent or  in  that  as  a  fellow  workman  ?  Since 
he  occupies  this  dual  position,  his  negligent  direc- 
tions to  the  workmen,  though  in  their  character 
acts  of  superintendence,  may  be  as  a  matter  of 
fact  capable  of  interpretation  either  as  the  orders 
of  a  superintendent  or  as  the  assurances  of  a  fel- 
low workman.  And  if  they  are  in  fact  the  latter, 
the  employer  will  not  be  liable  for  their  con- 
sequences under  this  clause.1 

Again,  assuming  that  he  was  acting  in  the 
capacity  of  a  superintendent,  was  the  negligent 
act  in  its  character  an  act  of  superintendence,  or 
merely  an  act  of  manual  labor  ?  It  has  been  held 
upon  this  question  that  if  "  there  was  nothing  in 
it  involving  any  control  over  or  direction  to  or 
oversight  of  any  other  workman,  or  requiring  any 
skill,  or  distinguishing  it  from  any  other  act  of 
manual  labor,"  it  could  not  be  regarded  as  an  act 
of  superintendence  for  which  the  employer  would 
be  responsible  under  this  clause.2 

intendent  as  evidence  upon  this  issue,  see  O'Brien  v.  Look,  171 
Mass.  36,41  (1898). 

1  Whittaker  v.  Bent,  167  Mass.  588  (1897),  and  see  also  the 
discussion  in  Cavagnaro  v.  Clark,  171  Mass.  359,  point  2  (1898). 

2  Riou  v.  Rockport  Granite  Co.,  171  Mass    162  (1898).     Fljun 
v.  Boston  Electric  Light  Company,  171  Mass.  395  (1898). 


THE   LIABILITY   OF   EMPLOYERS.  169 

§  162.  The  Limits  of  the  Operation  of  the  Clause. 
—  There  are  certain  limits  to  the  general  scope  of 
this  clause  that  are  fairly  well  defined.  The  law 
recognizes  that  every  employer  owes  to  his  em- 
ployees certain  duties,  upon  the  performance  of 
which  their  safety  very  largely  depends.  He  is 
bound  to  take  all  of  those  ordinary  and  usual  pre- 
cautions that  common  experience  has  shown  to  be 
necessary  in  order  to  protect  them  from  the  com- 
mon dangers  of  their  employment,  but  he  is  not 
required  to  go  further,  either  personally  or  by  his 
superintendent.  It  can,  therefore,  be  laid  down 
as  a  general  proposition  that  an  employer  is  not 
liable  under  this  clause  for  the  consequences  of  a 
negligent  act  of  his  superintendent,  though  such 
act  may  properly  be  in  its  character  an  act  of 
superintendence,  as  to  matters  outside  the  scope 
of  his  duties  toward  his  employees,  unless  it  clearly 
appears  that  he  has  undertaken  to  do  by  his 
superintendent  that  which  he  was  not  called  upon 
to  do.1 

It  has  been  held,  thus,  that  since  no  duty  rests 
upon  the  employer  to  inspect  the  exploders  used 
in  blasting  in  his  quarries,  he  is  not  liable  under 
this  clause  if  his  superintendent  undertakes  to 
inspect  them,  and  is  negligent  in  so  doing.2  And 

1  Shea  v.  Wellington,  163  Mass.  364,  370  (1895).     McCann  v. 
Kennedy,  167  Mass.  23  (1896).     Burns  v.  Washburn,  160  Mass. 
457,   458   (1894).     Fitzgerald  v.  Boston  &  Albany  Railroad,  156 
Mass.  293,  295  (1892). 

2  Shea  v.  Wellington,  163  Mass.  364,  370  (1895). 


170          STATUTORY   TORTS   IN  MASSACHUSETTS. 

again,  as  an  employer's  duty  to  look  out  for  the 
safety  of  his  employees  does  not  extend  to  every 
possible  risk  to  which  they  may  be  exposed,  it  has 
been  held  that  he  cannot  be  charged  with  the 
negligence  of  his  superintendent  in  failing  to  warn 
them  of  momentary,  passing  dangers,  in  those 
cases  where  the  employees  know  the  likelihood, 
though  perhaps  not  the  exact  time,  of  their  occur- 
rence.1 

But  if  it  is  a  part  of  the  duty  of  the  super- 
intendent to  do  certain  specific  acts  for  the  pro- 
tection of  the  employees  in  his  charge,  such  as 
the  giving  of  a  warning  on  the  approach  of  danger, 
they  have  a  right  to  rely  upon  his  doing  those  acts, 
and  can  recover  from  the  employer  for  injuries 
resulting  from  a  neglect  of  this  duty.  This  rule 
applies  especially  to  those  cases  where  the  duties 
of  the  employees  are  such  as  to  prevent  them 
from  protecting  themselves  from  the  dangers  in 
question.2 

1  McCann  v.  Kennedy,  167  Mass.  23  (1896). 

2  Davis  v.  New  York,  New  Haven,  etc.  Railroad,  159  Mass.  532, 
535  (1893).     See  also  Hennessy  v.  Boston,  161  Mass.  502  (1894), 
and  Mahoney  v.  New  York,  etc.  Railroad,  160  Mass.  573,579  (1894). 

For  suggestions  as  to  form  for  declaration  under  clause  two, 
see  Malcolm  v.  Fuller,  152  Mass.  160  (1890).  Fitzgerald  U.Boston 
&  Albany  Railroad,  156  Mass.  293  (1892).  O'Brien  v.  Rideout, 
161  Mass.  170  (1894).  Dane  v.  Cochrane  Chemical  Co,  164  Mass. 
453  (1895). 

The  question  of  the  negligence  of  the  superintendent  under 
various  sets  of  circumstances  was  discussed  in  the  following  cases : 
Sullivan  v.  Lally,  166  Mass.  265  (1896).  Gagnon  v.  Seaconnet 
Mills,  165  Mass.  221  (1896).  Crowley  v.  Cutting,  165  Mass.  436, 


THE   LIABILITY   OF    EMPLOYERS.  171 

SECTION  1,  CLAUSE  3.  By  reason  of  the  negligence 
of  any  person  in  the  service  of  the  employer  who  has 
the  charge  or  control  of  any  signal,  switch,  locomotive 
engine  or  train  upon  a  railroad,  the  employee,  or  in 
case  the  injury  results  in  death  the  legal  representatives 
of  such  employee,  shall  have  the  same  right  of  com- 
pensation and  remedies  against  the  employer  as  if  the 
employee  had  not  been  an  employee  of  nor  in  the 
service  of  the  employer,  nor  engaged  in  its  work. 

§  163.  General  Effect  of  the  Clause.  —  It  is  ele- 
mentary law  that  an  employee  injured  in  conse- 
quence of  the  negligence  of  such  a  person  as  is 
described  in  this  clause  had  no  remedy  before  the 
passage  of  the  Employer's  Liability  Act,  against 
his  employer.1  The  fellow-servant  doctrine  served 
as  an  effectual  bar  to  any  recovery  in  such  a  case. 
This  provision  of  the  statute  has,  therefore,  still 
further  enlarged  the  liability  of  employers.  It  has 
shifted  to  their  shoulders  a  burden  that  at  common 
law  rested  only  upon  the  negligent  fellow  employee. 
Thus,  as  in  the  case  of  the  second  clause,  this  clause 
in  effect  takes  the  particular  class  of  employees 

438  (1896).  Perry  v.  Old  Colony  Railroad,  164  Mass.  296,  300 
(1895).  McPhee  v.  Scully,  163  Mass.  216,  218  (1895).  Carroll  v. 
Willcutt,  163  Mass.  221,  224  (1895).  Hennessy  v.  Boston,  161 
Mass.  502  (1894).  Tremblay  v.  Mapes-Reeve  Construction  Co., 
169  Mass.  284  (1897).  Scullane  v.  Kellogg,  169  Mass.  544  (1897). 
Dean  v.  Smith,  169  Mass.  569  (1897).  Fleming  v.  Elston,  171 
Mass.  187  (1898).  Gouin  v.  Wampanoag  Mills,  172  Mass.  222 
(1898). 

1  Farwell  v.  Boston  &  Worcester  Railroad  Co.,  4  Met.  49 
(1842). 


172          STATUTORY  TORTS   IN   MASSACHUSETTS. 

which  it  describes  out  of  the  common  law  category 
of  fellow  servants  to  a  certain  extent,  and  to  that 
extent  makes  the  employers  directly  responsible 
for  certain  of  their  negligent  acts. 

§  164.  The  Scope  of  the  Clause.  —  This  third 
clause  has  a  more  restricted  field  for  its  operation 
than  the  preceding  clauses,  both  by  reason  of  the 
nature  of  its  subject-matter  and  by  reason  of  the 
construction  given  to  it. 

As  to  the  subject-matter,  it  is  plain  that  it  is 
of  such  a  nature  that  it  can  apply,  not  to  employ- 
ers in  general,  but  only  to  a  particular  class  of 
employers.  This  fact  alone  serves  of  course  to 
materially  abridge  its  field  of  operation. 

The  construction  placed  upon  its  terms  by  the 
court  has  still  further  limited  its  scope.  The  rule 
as  to  the  construction  of  statutes  in  derogation  of 
the  common  law  l  is,  it  seems,  to  be  more  strictly 
applied  to  the  provisions  of  this  clause.  They  are 
construed,  therefore,  as  imposing  a  liability  upon 
the  employer  only  for  the  negligence  of  an  em- 
ployee in  the  management  of  the  particulars  which 
are  specifically  mentioned  in  it  as  being  in  the 
charge  or  control  of  such  employee  :  it  does  not 
enlarge  the  common-law  liability  as  to  the  manage- 
ment of  any  other  matter.2  And  further,  the 
clause  is  construed  as  imposing  a  liability  upon 
the  employer  only  for  the  negligence  of  an  em- 
ployee in  the  charge  or  control  of  a  "  signal, 

1  See  Gibson  v.  Jenney,  15  Mass.  205  (1818). 

2  Thyng  v.  Fitchburg  Railroad,  156  Mass.  13,  18  (1892),  semble. 


THE   LIABILITY  OP   EMPLOYERS.  173 

switch,  locomotive  engine  or  train,"  when  com- 
pleted and  used  as  a  whole :  it  does  not  apply  to 
negligence  in.  the  management  of  any  of  them 
while  in  the  process  of  construction.1  This  latter 
point  is  illustrated  in  Thyng  v.  Fitchburg  Rail- 
road.2 In  that  case  it  appeared  that  the  employee, 
a  brakemau,  was  injured  by  the  breaking  apart  of 
the  freight  train  upon  which  he  was  riding  in  the 
performance  of  his  duty,  while  in  transit  from  one 
station  to  another ;  and  that  the  train  broke  apart 
by  reason  of  the  negligence  of  the  conductor  of  a 
switch  engine  in  making  up  the  train  in  the  freight 
yard.  It  was  held  that  the  injury  was  not  due  to 
the'negligence  of  any  person  in  charge  or  control 
of  the  train  within  the  meaning  of  this  clause,  on 
the  ground  that  the  conductor  of  the  switch  engine 
never  had  the  charge  or  control  of  the  train  as  a 
whole. 

"  BY  REASON  OF  THE  NEGLIGENCE  OF  ANY  PERSON 
IN  THE  SERVICE  OF  THE  EMPLOYER." 

§  165.  Who  comes  within  the  Meaning  of  this 
Provision.  —  This  provision  does  not  require  that 
the  person  who  has  the  charge  or  control  should 
be  a  conductor  or  an  engineer,  or  that  he  should 
have  any  particular  official  position.  It  is  the 
negligence  of  "  any  person"  who  has  the  charge  or 
control  of  the  matters  specified,  even  though  he 
has  it  only  for  the  time  being  and  for  a  temporary 

1  Thyng  v.  Fitchburg  Railroad,  156  Mass.  13,  17  (1892). 
156  Mass.  13,  17  (1892). 


174          STATUTORY  TORTS   IN   MASSACHUSETTS. 

purpose.  As  a  matter  of  construction,  therefore, 
and  without  the  aid  of  legislative  enactment,1  the 
case  is  brought  within  the  clause  where  a  train 
was  backing  down  with  only  an  engineer  and  a 
brakeman  in  charge  or  control,  it  being  the  duty 
of  the  latter  to  see  that  there  was  no  obstruction 
upon  the  track  and  to  stop  the  train  or  to  give  a 
warning  in  case  of  danger,  and  the  plaintiff  was 
injured  by  reason  of  the  negligence  of  the  brakeman 
in  the  performance  of  those  duties.2 

"  WHO   HAS   THE    CHARGE    OR   CONTROL." 

§  166.  Charge  or  Control. — Although  the  de- 
scriptive words  of  this  provision  are  used  in  the 
alternative,  the  distinctive  meaning  of  the  two 
words  is  not  given  effect.  As  interpreted  by  the 
court,  the  important  word  of  the  two  is  "  charge  : " 
the  word  "  control "  is  assimilated  to  it  in  mean- 
ing. It  is  not,  the  court  holds,  that  the  two  words 
are  to  be  regarded  as  exactly  synonymous,  but  "  as 
explanatory  of  each  other,  and  used  together  for 
the  purpose  of  describing  more  fully  one  and  the 
same  thing."  3 

This  construction,  when  applied  to  a  "  train," 
must  bar  out  of  the  statute,  it  seems,  that  class  of 
cases  where  an  injury  results  in  consequence  of 
the  negligent  management  of  the  train  by  some 
subordinate  member  of  the  train  gang,  who  had  at 

1  St.  1897,  ch.  491,  s.  2.     See  §  166. 

2  Steffee  v.  Old  Colony  Railroad,  156  Mass.  262  (1892). 

8  Caron  v.  Boston  &  Albany  Railroad,  164  Mass.  523,  527  (1895> 


THE   LIABILITY   OP   EMPLOYERS.  175 

the  time  the  physical  power  to  direct  its  move- 
ments, but  not  the  right  to  exercise  that  power 
save  under  the  immediate  orders  of  his  superior.1 
This  result  does  not  follow,  of  course,  from  the 
fact  that  the  negligent  employee  was  a  subordinate  ; 
he  may  be  a  subordinate  and  yet  have  the  "  charge 
or  control  "  of  the  train.2  The  distinction  between 
the  two  classes  of  cases  —  the  one  falling  with- 
out the  clause  and  the  other  within  —  appears  to 
be  the  distinction  between  the  mere  physical  power 
to  manage  the  train,  and  that  power  coupled  with 
the  right  or  duty  to  exercise  it.  That  is,  in  the 
first  class  of  cases  the  negligent  employee  has 
simply  the  physical  power  to  direct  the  movements 
of  the  train,  without  the  right  or  duty  of  exercising 
it,  save  as  he  is  ordered  so  to  do  by  his  superior ; 
while  in  the  second  class  of  cases  the  negligent 
employee  has,  not  alone  the  physical  power  to 
manage  the  train,  but  also  the  right  and  duty  of  so 
doing  at  his  own  discretion  untrammelled  by  the 
particular  control  of  a  superior. 

The  legislature  has  defined  "  a  person  in  charge 
or  control  "  in  the  following  language  : 3  — 

1  See  instructions  to  the  jury,   Devine  v.  Boston  &  Albany 
Railroad,  159  Mass.  348,  349  (1893). 

2  Steffee  v.  Old  Colony  Railroad,  156  Mass.  262  (1892).    And 
see  §  165. 

8  St.  1897,  ch.  491,  s.  2. 

"  By  the  words  '  any  person  .  .  .  who  has  the  charge  or  con- 
trol '  is  meant  a  person  who,  for  the  time  being  at  least,  has  im- 
mediate authority  to  direct  the  movements  and  management  of 
the  train  as  a  whole,  and  of  the  men  engaged  upon  it."  Caron  v. 
Boston  &  Albany  Railroad,  164  Mass.  523,  528  (1895). 


176          STATUTORY  TORTS  IN   MASSACHUSETTS. 

"  Any  person  who,  as  a  part  of  his  duty  for  the 
time  being,  physically  controls  or  directs  the  move- 
ments of  a  signal,  switch  or  train  shall  be  deemed 
to  be  a  person  in  charge  or  control  of  a  signal, 
switch  or  train  within  the  meaning  of  clause  three 
of  section  one  of  chapter  two  hundred  and  seventy 
of  the  acts  of  the  year  eighteen  hundred  and  eighty- 
seven  and  acts  in  addition  thereto  or  in  amend- 
ment thereof." 

It  may  be  observed  in  passing  that  this  legisla- 
tive definition  is  not  applied  specifically  to  a 
"  locomotive  engine." 

§  167.  The  entire  "  Charge  or  Control  "  need  not 
be  in  one  Person.  —  It  does  not  follow  from  the 
construction  given  to  this  provision  that  the  entire 
"  charge  or  control "  of  a  train  must  be  vested  in 
only  one  person  at  a  time.  It  may,  on  the  con- 
trary, be  vested  in  at  least  two  persons  at  the  same 
time.  It  has  been  held,  thus,  that  for  some  pur- 
poses the  "  charge  or  control  "  of  a  train  is  to  be 
regarded  as  vested  in  the  conductor,1,  while  for 
other  purposes,  as  for  giving  signals  or  for  slack- 
ening speed  on  the  approach  to  danger,  it  is  to  be 
considered  as  vested  in  the  engineer.3 

§  168.  Person  in  "  Charge  or  Control  "  need  not 
be  upon  the  Train.  —  It  is  not  necessary,  in  order  to 
bring  a  case  within  the  accepted  meaning  of  this 

1  Donahoe   v.   Old    Colcmy  Railroad,    153    Mass.    356   (1891). 
Devine  v.  Boston  &  Albany  Railroad,  159  Mass.  348  (1893). 

2  Davis  v.  New  York,  New  Haven,  etc.  Railroad,  159  Mass.  532 
(1893). 


THE   LIABILITY   OP  EMPLOYERS.  177 

provision,  to  show  that  the  person  alleged  to  have 
been  in  "  charge  or  control "  of  the  train  was 
actually  upon  it,1  or  even  near  to  it,2  at  the  time 
of  the  accident,  provided  it  is  moved  under,  and  in 
accordance  with,  his  directions. 

It  has  been  held  accordingly  that  where,  by  the 
orders  of  the  conductor  who  stood  near  by  and 
operated  the  switch,  two  cars  were  uncoupled  from 
the  engine  and  shunted  on  to  a  siding  with  too 
great  force,  in  consequence  of  which  the  brakeman 
upon  them  was  injured,  the  conductor  was  so  far 
in  "  charge  or  control "  of  the  train  as  to  render 
the  railroad  company  liable  for  the  brakeman's 
injury.3  So  also  where  the  conductor  left  his  train 
at  Hyde  Park  in  order  to  perform  there  certain 
duties  incident  to  his  employment,  and  meanwhile 
by  his  directions  the  train  proceeded  to  Reedville, 
a  short  distance  beyond,  for  the  purpose  of  taking 
on  certain  empty  cars,  and  the  plaintiff  was  in- 
jured during  this  operation,  it  was  held  that  the 
conductor  was  still  in  "  charge  or  control "  of  the 
train  at  the  time  when  the  accident  happened, 
within  the  meaning  of  this  clause.4 

"  OF  ANT  SIGNAL,  SWITCH,  LOCOMOTIVE  ENGINE  OK 
TRAIN." 

§  169.  Meaning  of  the  Provision.  —  It  seems  that 
this  clause  applies  only  to  a  signal,  switch,  locomo- 

1  Devine  v.  Boston  &  Albany  Railroad,  159  Mass.  348  (1893). 

2  Donahoe  v.  Old  Colony  Railroad,  153  Mass.  356  (1891). 

8  Devine  v.  Boston  &  Albany  Railroad,  159  Mass.  348  (1893). 
*  Donahoe  v.  Old  Colony  Railroad,  153  Mass.  356  (1891). 
12 


178          STATUTORY   TORTS   IN  MASSACHUSETTS. 

tive  engine,  or  train  as  a  whole.  The  negligence 
of  any  person  in  "  charge  or  control "  of  any  of 
these  matters  while  in  the  process  of  construction 
would  not,  therefore,  come  within  the  statute.1 

§170.  What  constitutes  a  "Train."  —  In  Dacey 
v.  Old  Colony  Railroad,2  Mr.  Justice  Knowlton, 
speaking  for  the  court  upon  this  subject,  said  : 
"  We  think  a  locomotive  and  one  or  more  cars 
connected  together  and  run  upon  a  railroad  con- 
stitute a  train  within  the  meaning  of  that  word  as 
used  in  the  statute."  It  was  subsequently  held 
that  it  was  not  essential  to  the  definition  that  the 
cars  should,  at  the  time  of  the  accident,  be  moving 
by  direct  power  from  the  engine,  —  it  was  enough 
if  they  were  moving  by  their  own  momentum.  It 
is  not  necessary,  therefore,  that  there  should  be  a 
locomotive  attached  to  the  cars  at  the  moment 
when  the  accident  happens.3  In  the  light  of  this 
decision  the  court  in  a  subsequent  case  defined  a 
train  as  "  a  number  of  cars  coupled  together,  form- 
ing one  connected  whole  and  moving  from  one 
point  to  another  upon  a  railroad,  in  the  ordinary 
course  of  its  traffic,  under  an  impetus  imparted  to 
them  by  a  locomotive  which  shortly  before  the 
accident  had  been  detached."3 

1  See  Thyng  v.  Fitchburg  Railroad,  156  Mass.  13,  18  (1892). 

"  The  language  of  the  statute  seems  to  us  clearly  to  show  that 
a  person  having  control  of  a  switch  is  not  a  person  in  charge  or 
control  of  a  train."  Fairman  v.  Boston  &  Albany  Railroad,  169 
Mass.  170,  177  (1897). 

2  153  Mass.  112,  115  (1891). 

8  Caron  v.  Boston  &  Albany  Railroad,  164  Mass.  523, 527  (1895). 


THE   LIABILITY   OF   EMPLOYERS.  179 

The  legislature  has  defined  a  train  as  fol- 
lows:1— 

"  One  or  more  cars  in  motion,  whether  attached 
to  an  engine  or  not,  shall  constitute  a  train  within 
the  meaning  of  clause  three  of  section  one  of 
chapter  two  hundred  and  seventy  of  the  acts  of  the 
year  eighteen  hundred  and  eighty-seven  and  acts 
in  addition  thereto  or  in  amendment  thereof." 

The  chief  contribution  to  the  subject  made  by 
this  act  appears  to  be  that  it  settles  the  question 
as  to  the  number  of  cars  which  may  constitute  a 
"  train." 

"UPON  A   RAILROAD." 

§171.  Construction  of  the  Word  "Railroad."  — 
This  term  is  given  a  popular,  rather  than  a  strict, 
interpretation.  Its  meaning,  therefore,  is  not  con- 
fined to  railroads  owned  and  operated  by  railroad 
corporations,  but  includes  whatever  may  popularly 
be  termed  a  railroad.  Hence,  the  length  or  per- 
manence of  the  track  is  not  material :  although  it 
be  short,  and  laid  and  used  by  a  contractor  for 
a  temporary  purpose  only,  it  is  a  railroad  within 
the  meaning  of  the  word  as  here  used.2 

Furthermore,  these  words  are  interpreted  to  mean 
a  railroad  upon  which  the  engines  and  trains  are 
operated  and  run,  or  were  "  originally  intended 
to  be  operated  and  run  in  some  manner  and  to 
some  extent  by  steam."  It  has  been  held,  there- 

i  St.  1897,  ch.  491,  s.  1. 

*  Coughlan  v.  Cambridge,  166  Mass.  268  (1896).  Doughty  ». 
Firbank,  10  Q.  B.  D.  355  (1883). 


180         STATUTORY  TORTS  IN  MASSACHUSETTS. 

fore,  that  a  car  of  a  street  railway  operated  by 
electricity  in  the  manner  in  which  cars  upon  street 
electric  lines  usually  are,  could  not  be  regarded  as 
a  locomotive  engine,  or  train  upon  a  railroad 
within  the  meaning  of  this  provision.1 

§172.  Construction  of  the  Provision. — It  was 
said  in  Thyng  v.  Fitchburg  Railroad 2  that  the  stat- 
ute "  seems  chiefly  to  contemplate  the  danger  from 
a  locomotive  engine  or  train  as  a  moving  body, 
and  to  provide  against  the  negligence  of  those 
who,  either  wholly  or  in  part,  control  its  move- 
ments." The  idea  there  expressed  largely  shapes 
the  construction  to  be  given  to  this  provision.  In 
order  to  come  within  the  meaning  of  the  clause, 
therefore,  it  must  appear  that  the  locomotive 
engine  or  train  was,  at  the  time  of  the  accident, 
upon  the  railroad  track  and  actually  used,  or 
possibly  about  to  be  used,  in  the  ordinary  course 
of  the  company's  business.  This  interpretation 
bars  out  of  the  statute  the  case  where  an  employee 
was  injured  by  reason  of  the  negligent  manage- 
ment of  his  engine  by  the  engineer,  in  the  course 
of  certain  repairs  that  he  was  making  upon  it 
while  it  was  stalled  in  the  roundhouse.3 

1  Fallen  v.  West  End  Street  Railway,  171  Mass.  249  (1898). 
The  court  in  that  case  further  says :  "  Possibly  a  railroad,  where 

the  motive  power  has  been  changed  in  part  or  altogether  from  steam 
to  electricity,  or  some  other  mechanical  agency,  but  which  retains 
in  other  respects  the  characteristics  of  a  steam  railroad,  would 
come  within  the  purview  of  the  act." 

2  156  Mass.  13,  18  (1892). 

8  Perry  v.  Old  Colony  Railroad,  164  Mass.  296,  301  (1895). 


THE  LIABILITY  OP   EMPLOYERS.  181 

"  THE  EMPLOYEE,  OR  IN  CASE  THE  INJURY  RESULTS  IN 
DEATH  THE  LEGAL  REPRESENTATIVES  OF  SUCH  EMPLOYEE." 

§  173.  Meaning  of  the  Provision.  —  This  pro- 
vision is  not  so  construed  as  to  make  the  death 
of  the  employee  a  substantive  cause  of  action. 
The  legal  representatives  of  the  deceased  employee 
are  held  to  simply  succeed  to  the  rights  and  rem- 
edies of  their  testate  or  intestate.1 

"  SHALL  HAVE  THE  SAME  RIGHT  OF  COMPENSATION  AND 
REMEDIES  AGAINST  THE  EMPLOYER  AS  IF  THE  EMPLOYEE 
HAD  NOT  BEEN  AN  EMPLOYEE  OF  NOR  IN  THE  SERVICE  OF 
THE  EMPLOYER,  NOR  ENGAGED  IN  ITS  WORK." 

§  174.  Position  of  an  Employee  suing  under  the 
Act.  —  The  language  of  this  provision  pretty  clearly 
indicates  an  intention  on  the  part  of  the  legislature 
that  an  employee  who  sued  under  this  statute 
should  occupy  a  position  as  advantageous  as,  but 
no  better  than,  that  of  any  one  of  the  public 
suing  under  the  same  circumstances.  This  posi- 
tion the  courts  have,  in  most  respects,  accorded  to 
him. 

Whatever  advantages  the  rules  of  law  afford 
to  one  of  the  public  in  establishing  a  case  for 
personal  injuries,  are  given  to  the  employee  who 
sues  under  the  act.  In  actions  at  common  law  for 
personal  injuries,  an  employee  could  very  rarely, 
if  ever,  make  out  a  prima  facie  case  by  simply  show- 
ing that  the  accident  happened ;  he  was  obliged 
to  go  further  and  to  submit  some  evidence  of 

1  Ramsdell  v.  New  York,  etc.  Eailroad,  151  Mass.  245  (1890). 


182          STATUTORY   TORTS  IN   MASSACHUSETTS. 

negligence  on  the  part  of  the  employer.1  But  in 
a  suit  under  the  statute  he  can  avail  himself  of 
the  maxim  res  ipsa  loquitur  to  the  same  extent 
and  with  the  same  effect  as  though  he  had  not 
been  an  employee.  When,  therefore,  the  accident 
is  one  that  the  exercise  of  ordinary  care  on  the 
part  of  the  employer  would  commonly  prevent, 
evidence  of  the  happening  of  the  accident,  without 
more,  makes  out  for  him  a  prima  facie  case.2 

As  to  the  defences  available  against  an  employee 
who  sues  under  the  statute,  it  is  generally  conceded 
that  all  which  are  not  based  upon  the  relation  of 
master  and  servant  are  still  open  to  the  employer. 
In  this  respect  the  employee  has  no  better  position 
than  any  stranger.3  But,  on  the  other  hand,  he 
is  not  given,  in  all  points,  so  good  a  position.  As 
the  statute  is  construed,  not  quite  all  the  special 
defences  that  the  common  law  afforded  to  an 
employer  are  abolished :  the  relation  of  master 
and  servant  is  recognized  as  so  far  continuing  in 
existence  between  them  that  the  employer  can  avail 
himself  of  the  defence  of  assumption  of  risk  — 

1  Duffy  v.  Upton,  113   Mass.  544  (1873).      Reed  v.  Boston  & 
Albany  Railroad,  164  Mass.  129  (1895). 

2  Graham  v.   Badger,  164  Mass.  42,  47  (1895).     Hennessy  v. 
Boston,  161  Mass.  502  (1894).     Mahoney  v.  New  York,  etc.  Rail- 
road, 160  Mass.  573,  579  (1894). 

Suggestions  as  to  the  form  of  a  declaration  under  this  clause 
may  perhaps  be  found  in  Ramsdell  v.  New  York,  etc.  Railroad,  151 
Mass.  245  (1890). 

8  Weblin  v.  Ballard,  17  Q.  B.  D.  122  (1886).  PettingeU  v. 
Chelsea,  161  Mass.  368  (1894). 


THE   LIABILITY   OF   EMPLOYERS.  183 

a  defence  growing  directly  out  of  the  contract 
of  employment.1  In  this  single  instance  the  nat- 
ural and  uniform  development  of  the  law  under 
the  act  appears  to  have  been  departed  from. 

The  position  of  the  employee  who  sues  under 
the  statute  is  not,  therefore,  on  the  whole  exactly 
that  occupied  by  one  of  the  public  suing  under  the 
same  circumstances.  Nor  does  it  appear  to  have 
any  exact  legal  analogy  —  the  nearest  approach 
thereto  is  perhaps  the  position  occupied  by  an  in- 
dependent contractor. 

ACTS,  1892, 2  AMENDING  SECTION  1.  And  in  case 
such  death  is  not  instantaneous,  or  is  preceded  by 
conscious  suffering,  said  legal  representatives  may  in 
the  action  brought  under  this  section,  except  as  here- 
inafter provided,  also  recover  damages  for  such  death. 
The  total  damages  awarded  hereunder,  both  for  said 
death  and  said  injury,  shall  not  exceed  five  thousand 
dollars,  and  shall  be  apportioned  by  the  jury  between 
the  legal  representatives  and  the  persons,  if  any,  en- 
titled under  the  succeeding  section  of  this  act,  to  bring 
an  action  for  instantaneous  death.  If  there  are  no  such 
persons  then  no  damages  for  such  death  shall  be  re- 
covered, and  the  damages,  so  far  as  the  same  are 
awarded  for  said  death,  shall  be  assessed  with  refer- 
ence to  the  degree  of  culpability  of  the  employer 
herein,  or  the  person  for  whose  negligence  he  is 
made  liable. 

1  See  §  122,  ante. 

2  St.  1892,  ch.  260,8.  1. 


184          STATUTORY   TORTS   IN   MASSACHUSETTS. 

§  175.  Rights  given  by  this  Amendment.  —  The 
Employer's  Liability  Act,  as  it  now  stands,  rec- 
ognizes two  kinds  of  death,  and  deals  with  each 
in  a  different  manner.  The  provisions  of  this 
amendment,  by  express  limitation,  deal  only  with 
that  kind  of  death  which  "  is  not  instantaneous, 
or  is  preceded  by  conscious  suffering."  Under 
this  particular  division  of  the  subject,  two  distinct 
causes  of  action  are  specified  and  regulated  :  the 
one  for  the  injury,  the  other  for  the  death.  For 
both  of  these  causes,  the  right  of  action,  it  will  be 
observed,  is  vested  in  the  same  persons, —  the  legal 
representatives  of  the  deceased  employee. 

The  terms  of  the  act  place  no  limitation  upon 
the  right  to  sue  for  the  conscious  suffering  of  the 
deceased ;  that  was  given  by  the  statute  as  it  was 
originally  enacted,1  and  survives  to  the  legal  rep- 
resentatives under  all  circumstances.  The  amount 
of  damages  recovered  in  such  suit  would,  it  seems, 
become  a  part  of  the  assets  of  the  estate  of  the 
deceased,  and  thus  be  subject  to  the  claims  of 
creditors  and  legatees. 

On  the  other  hand,  the  right  of  action  for  the 
death  itself  is  expressly  limited  to  those  cases 
where  the  deceased  leaves  a  widow  or  dependent 
next  of  kin.  And  the  amount  apportioned  as  dam- 
ages for  this  cause  of  action  does  not  go  to  the 
legal  representatives  of  the  deceased,  but  directly 
to  his  widow  or  dependent  next  of  kin. 

1  Eamsdell  v.  New  York,  etc.  Railroad,  151  Mass.  245  (1890). 
Clark  v.  Same,  160  Mass.  39  (1893). 


THE   LIABILITY   OF  EMPLOYERS.  185 

§  176.  Effect  of  the  Amendment.  — The  general 
effect  of  this  amendment,  in  so  far  as  it  makes 
death  itself  a  substantive  cause  of  action,  is  to 
bring  about  another  wide  departure  from  the  com- 
mon law  of  master  and  servant,  under  which  there 
was,  of  course,  no  liability  for  causing  the  death  of 
an  employee.  And  by  so  doing,  it  increases  the 
liability  of  employers,  even  beyond  the  point 
reached  under  the  original  act  of  1887. 

SECTION  2.  Where  an  employee  is  instantly  killed 
or  dies  without  conscious  suffering,  as  the  result  of  the 
negligence  of  an  employer,  or  of  the  negligence  of 
any  person  for  whose  negligence  the  employer  is  liable 
under  the  provisions  of  this  act,  the  widow  of  the 
deceased,  or  in  case  there  is  no  widow,  the  next  of 
kin,  provided  that  such  next  of  kin  were  at  the  time  of 
the  death  of  such  employee  dependent  upon  the  wages 
of  such  employee  for  support,  may  maintain  an  action 
for  damages  therefor  and  may  recover  in  the  same 
manner,  to  the  same  extent,  as  if  the  death  of  the 
deceased  had  not  been  instantaneous,  or  as  if  the  de- 
ceased had  consciously  suffered. 

§  177.  Subject-matter  and  Object  of  the  Sec- 
tion. —  This  section  deals  with  the  second  kind  of 
death  recognized  by  the  statute,  namely,  death  that 
is  instantaneous  or  without  conscious  suffering. 
It  is  treated  differently  from  death  that  is  not  in- 
stantaneous or  is  preceded  by  conscious  suffering 
mainly  in  respect  to  the  parties  in  whom  the  right 
of  action  is  vested.1 

1  See§  175,  ante. 


186          STATUTORY  TORTS   IN  MASSACHUSETTS. 

.The  intention  of  the  legislature  in  enacting  this 
portion  of  the  statute  was  obviously  to  make  some 
provision  for  those  persons  who  were  dependent 
upon  the  deceased  employee  for  support.  The 
process  that  was  adopted  for  the  accomplishment 
of  this  object  is  both  simple  and  direct,  —  the 
widow  of  the  deceased  is  given  the  right  to  main- 
tain in  her  own  name  an  action  against  the  em- 
ployer for  causing  the  death ;  or  if  there  is  no 
widow,  then  the  same  right  is  extended  to  any  de- 
pendent next  of  kin.  And  the  amount  of  damages 
recovered  in  such  suit  is  given  directly  to  the 
widow  or  to  the  dependent  next  of  kin,  as  the  case 
may  be.  Never  constituting  a  part  of  the  assets  of 
the  estate  of  the  deceased,  it  is  freed  from  all  pos- 
sible claims  of  his  creditors,  or  of  legatees  under 
any  will  he  may  leave. 

§  178.  Due  Care  on  the  Part  of  the  Deceased.  — 
It  is  a  plain  condition  that,  in  order  to  maintain 
an  action  under  this  section,  the  plaintiff  must 
show  that  the  deceased  was,  at  the  time  of  the 
accident  which  resulted  in  his  death,  in  the  exer- 
cise of  due  care.1  So  far  as  this  burden  is  con- 
cerned, the  widow  or  next  of  kin  stand  in  no 
better  position  than  would  the  employee  if  he  had 
survived.  The  onlv  difference  that  can  be  sug- 


1  Lothrop  v.  Fitchburg  Railroad,  150  Mass.  423  (1890).  Shea 
v.  Boston  &  Maine  Railroad,  154  Mass.  31  (1891).  Browne  v. 
New  York,  etc.  Railroad,  158  Mass.  247  (1893).  McLean  v.  Chem- 
ical Paper  Co.,  165  Mass.  5  (1895).  Dyer  v.  Fitchburg  Railroad, 
170  Mass.  148  (1898). 


THE  LIABILITY  OP   EMPLOYERS.  187 

gested  as  to  the  position  of  these  two  classes  of 
plaintiffs  in  this  respect  is  in  the  character  of  the 
evidence  with  which  the  burden  of  proof  is  gen- 
erally sustained.  In  most  suits  brought  by  the 
employee  himself  there  is  direct  evidence  upon  the 
subject;  while  in  most  cases  of  death  which  is 
instantaneous  or  without  conscious  suffering  there 
can  be  no  such  evidence.  In  these  latter  cases  the 
plaintiff  is  generally  obliged  to  establish  the  fact  of 
due  care  by  the  aid  of  evidence  from  which  it  may 
properly  be  inferred.  And  it  has  been  held  that 
the  jury  may  as  properly  infer  due  care  on  the 
part  of  the  deceased  from  the  absence  of  negli- 
gence, where  there  is  a  full  disclosure  of  the  facts 
of  the  case,  as  from  direct  evidence  of  diligence.1 

' '  WHERE   AN   EMPLOYEE    is   INSTANTLY    KILLED    OR 

DIES    WITHOUT  CONSCIOUS    SUFFERING." 

§  179.  Burden  of  Proof  under  this  Provision.  —  In 
order  to  maintain  an  action  under  this  section,  the 
widow  or  dependent  next  of  kin  must  satisfy  the 
jury  that  the  death  of  the  employee  was  instantan- 
eous or  without  conscious  suffering.  Where  there 
is  no  direct  evidence  bearing  upon  this  point,  the 
jury  may,  nevertheless,  infer  that  such  was  the 
fact  from  all  the  evidence  in  the  case.2  Thus, 
where  the  deceased  was  knocked  from  the  rear  car 

1  Caron   v.   Boston   &  Albany   Railroad,  164  Mass.  523,  525 
(1895),  and  see  §  129. 

2  Maher  v.  Boston  &  Albany  Railroad,  158  Mass.  36  (1893). 
Mears  v.  Boston  &  Maine  Railroad,  163  Mass.  150  (1895).     Green 
v.  Smith,  169  Mass.  485  (1897). 


188         STATUTORY  TORTS  IN  MASSACHUSETTS. 

of  a  freight  train  by  the  contact  of  his  head  with 
a  bridge,  the  court  held  that,  taking  into  account 
the  speed  of  the  train,  the  lesions  upon  his  head, 
and  the  fact  that  no  outcry  was  heard,  the  in- 
ference was  justified  that  he  died  instantly  or 
without  conscious  suffering.1 

It  is  to  be  observed  that  these  phrases  are  used 
in  the  alternative.  If,  therefore,  it  appears  from 
the  evidence  that  the  employee  was  not  instantly 
killed,  the  plaintiff  may  still  sustain  the  burden  of 
proof  imposed  by  this  provision  by  showing  that, 
though  not  instantly  killed,  he  died  without  ever 
having  regained  consciousness.2 

§  180.  "What  constitutes  Death  •without  Conscious 
Suffering.  —  What  constitutes  death  without  con- 
scious suffering  within  the  meaning  of  this  section 
is,  of  course,  a  question  of  fact.  It  has  been  held 
that  the  jury  was  warranted  in  finding  that  the 
employee  died  without  conscious  suffering  where  it 
appeared  that  his  body  was  crushed  by  a  car,  but 
that  he  took  two  or  three  steps  after  he  was  struck 
by  it.3  So,  also,  where  the  evidence  showed  that 
death  resulted  from  concussion  of  the  brain,  al- 
though it  appeared  that  he  uttered  a  few  scattering 
words  after  the  accident.4 

1  Maher  v.  Boston  &  Albany  Railroad,  158  Mass.  36,  45  (1893). 

2  Hodnett  v.  Boston  &  Albany  Railroad,  156  Mass.  86  (1892). 
8  Mears  v.  Boston  &  Maine  Railroad,  163  Mass.  150  (1895). 

4  Willey  v.  Boston  Electric  Light  Co.,  168  Mass.  40  (1897).  See 
also  Mulcahey  v.  Washburn  Car  Wheel  Co.,  145  Mass.  281  (1887). 
Hodnett  v.  Boston  &  Albany  Railroad,  156  Mass.  86  (1892).  Green 
v.  Smith,  169  Mass.  485  (1897). 


THE   LIABILITY   OP   EMPLOYERS.  189 

"As  THE  RESULT  OF  THE  NEGLIGENCE  OP  AN 
EMPLOYER,  OR  OF  THE  NEGLIGENCE  OF  ANY  PERSON 
FOR  WHOSE  NEGLIGENCE  THE  EMPLOYER  IS  LIABLE 
UNDER  THE  PROVISIONS  OF  THIS  ACT." 

§  181.  Effect  of  the  Provision.  —  The  statute 
here  makes  a  plain  distinction  between  the  negli- 
gence of  the  employer  himself  and  the  negligence 
of  those  employees  for  which  this  act  makes  him 
liable.  The  effect  of  the  distinction,  so  far  as  this 
part  of  the  act  is  concerned,  is  that  the  liability 
imposed  by  this  section  for  the  negligence  of  the 
employer  himself  is  very  broad,  covering  any  negli- 
gent act  of  his  whatsoever  ;  but  as  to  the  negligence 
of  an  employee  is  strictly  limited,  including  only 
the  negligent  acts  of  a  particular  class,  namely, 
those  specified  in  section  one.1  As  was  said  by  Mr. 
Justice  Knowlton  in  a  recent  case  : l  "  The  clause 
'  under  the  provisions  of  this  act '  qualifies  only 
the  clause  '  any  person  for  whosa  negligence  the 
employer  is  liable,'  and  does  not  limit  the  preced- 
ing clause,  *  as  the  result  of  the  negligence  of  an  em- 
ployer.' The  effect  of  the  section  is  to  give  a  right 
of  recovery  whenever  a  person  is  instantly  killed 
or  dies  without  conscious  suffering  as  the  result  of 
any  negligence  of  the  employer  himself,  but  not  to 
give  the  right  when  a  death  occurs  from  the  negli- 
gence of  an  employee,  unless  the  negligence  is  of  a 
kind  that  would  subject  the  employer  to  a  liability 
under  the  first  section  of  the  statute  if  the  deceased 
person  had  been  injured  and  had  survived." 

1  Welch  v.  Grace,  167  Mass.  590,  592  (1897). 


190       STATUTORY  TORTS  IN  MASSACHUSETTS. 

"  THE  WIDOW  OF  THE  DECEASED,  OR  IN  CASE  THERE 
IS  NO  WIDOW,  THE  NEXT  OF  KIN." 

§  182.  In  whom  the  Right  of  Action  is  Vested.  — 
This  section  gives  the  right  of  action  only  to  the 
widow  or  dependent  next  of  kin  of  the  deceased 
employee.1  Not  only  does  it  not  give  any  right  of 
action  to  his  legal  representatives,  but  this  section 
cannot  be  so  combined  with  the  statute  of  eighteen 
hundred  and  eighty-three,  chapter  two  hundred 
and  forty-three,  as  to  enable  such  representatives 
to  maintain  an  action  where  the  death  of  the 
employee  was  instantaneous  or  without  conscious 
suffering,  and  no  widow  nor  dependent  next  of  kin 
survived.2 

This  clause  does  not  require,  however,  that 
where  there  is  no  widow,  the  action  shall  be  main- 
tained by  all  of  the  next  of  kin  suing  jointly. 
Any  one  of  them  alone,  who  was  dependent  upon 
the  wages  of  the  deceased  for  support,  can  main- 
tain the  action.3 

"  PROVIDED  THAT  SUCH  NEXT  OF  KIN  WERE  AT  THE 
TIME  OF  THE  DEATH  OF  SUCH  EMPLOYEE  DEPENDENT 
UPON  THE  WAGES  OF  SUCH  EMPLOYEE  FOR  SUPPORT." 

§  183.  What  must  be  shown  under  this  Provision. 
—  Under  this  provision  the  burden  rests  upon  the 
next  of  kin  who  brings  the  suit  to  prove  that  he 
or  she  was,  at  the  time  of  the  death  of  the  deceased, 

1  See  Clark  v.  New  York,  etc.  Railroad,  160  Mass.  39  (1893). 

2  Dacey  v.  Old  Colony  Railroad,  153  Mass.  112,  118  (1891). 

8  Daly  v.  New  Jersey  Steel  &  Iron  Co.,  155  Mass.  1,  4  (1891). 


THE   LIABILITY   OP    EMPLOYERS.  191 

dependent  upon  his  wages  for  support.1  But  in 
order  to  sustain  this  burden,  the  plaintiff  is  not 
required  to  show  legal  dependence :  whether  or 
not  the  deceased  was  bound,  under  the  provisions 
of  Public  Statutes,  chapter  84,  section  6,  to  support 
the  plaintiff  is  not  material  here.  Evidence  show- 
ing the  mere  fact  of  dependence  is  sufficient.2 

§  184.  What  constitutes  Dependence.  —  The 
question  of  dependency  under  this  act,  as  under 
the  statute  relating  to  beneficiary  associations, 
is  treated  solely  as  a  question  of  fact.  Thus 
where  it  appeared  that  the  plaintiff,  who  was  a 
daughter  of  the  deceased,  had  lived  with  him ;  that 
he  had  turned  over  to  her  all  his  wages,  with 
which  she  ran  the  house  and  bought  her  clothing ; 
that  she  had  also  some  income  from  another  source, 
but  that  she  used  all  the  money  received  from 
both  sources,  —  it  was  held  that  she  was  dependent 
upon  the  wages  of  the  deceased  for  support  within 
the  meaning  of  this  provision.3  A  similar  decision 
was  reached  where  it  appeared  that  the  plaintiff,  a 
sister  of  the  deceased,  was  an  invalid  and  not  able 
to  work  regularly,  and  that  she  received  monthly  a 
sum  of  money  from  him  for  her  support.2  But  evi- 
dence showing  that  the  deceased  sent  to  the  plaintiff 
a  sum  of  money  every  other  week  or  so  with  which 
to  pay  her  rent ;  that  she  had  no  means  of  support 

1  Hodnett  v.  Boston  &  Albany  Railroad,  156  Mass.  86  (1892). 

2  Daly  v.  New  Jersey  Steel  &  Iron  Co.,  155  Mass.  1,  5  (1891). 

*  Houlihan    v.   Connecticut    Eiver    Railroad,   164   Mass.    555 
(1895). 


192        STATUTORY  TORTS   IN   MASSACHUSETTS. 

except  her  own  earnings  ;  and  that  since  the  death 
of  the  deceased  she  had  been  obliged  to  support 
herself,  —  was  held  not  to  satisfy  this  provision.1 

' '  MAY  MAINTAIN  AN  ACTION  FOR  DAMAGES  THEREFOR 
AND  MAY  RECOVER  IN  THE  SAME  MANNER,  TO  THE  SAME 
EXTENT,  AS  IF  THE  DEATH  OF  THE  DECEASED  HAD  NOT 
BEEN  INSTANTANEOUS,  OR  AS  IF  THE  DECEASED  HAD  CON- 
SCIOUSLY SUFFERED." 

§185.  Meaning  of  the  Provision.  —  The  exact 
meaning  intended  to  be  conveyed  by  this  provision 
is  perhaps  somewhat  obscured  by  the  language  used. 
Relative  to  it  the  court  has  said  that  these  words 
"  can  hardly  be  used  with  literal  accuracy,  for 
there  was  no  law  under  which  a  widow  or  next 
of  kin  could  recover  at  all  for  the  death  of  the 
husband  or  relative  until  this  statute  was  passed. 
The  meaning  obviously  is,  that  the  right  of  action 
given  in  the  first  part  of  the  section  shall  not  be 
affected  by  the  fact  that  the  deceased  died  in- 
stantaneously, or  without  conscious  suffering." 2 

SECTION  3.  Except  in  actions  brought  by  the  personal 
representatives  under  section  one  of  this  act  to  recover 
damages  for  both  the  injury  and  death  of  an  em- 
ployee,8 the  amount  of  compensation  receivable  under 

1  Hodnett  v.  Boston  &  Albany  Railroad,  156  Mass.  86  (1892). 

2  Ramsdelli*.  New  York,  etc.  Railroad,  151  Mass.  245,  249  (1890). 
For  possible  suggestions  as  to  the  form  of  declarations  in  actions 

by  the  widow,  next  of  kin,  or  legal  representatives  of  the  deceased, 
see  Gustafsen  v.  Washburn  &  Moen  Manuf.  Co.,  153  Mass.  468 
(1891).     O'Keefe  v.  Brownell,  156  Mass.    131   (1892).     Maher   v. 
Boston  &  Albany  Railroad,  158  Mass.  36  (1893). 
8  This  clause  is  added  by  St.  1892,  ch.  260,  s.  2. 


THE   LIABILITY   OP   EMPLOYEES.  193 

this  act  in  cases  of  personal  injury  shall  not  exceed 
the  sum  of  four  thousand  dollars.  In  case  of  death 
which  follows  instantaneously  or  without  conscious  suffer- 
ing,1 compensation  in  lieu  thereof  may  be  recovered 
in  not  less  than  five  hundred  and  not  more  than  five 
thousand  dollars,  to  be  assessed  with  reference  to  the 
degree  of  culpability  of  the  employer  herein,  or  the 
person  for  whose  negligence  he  is  made  liable ;  and 
no  action  for  the  recovery  of  compensation  for  injury  or 
death  under  this  act  shall  be  maintained,  unless  notice 
of  the  time,  place  and  cause  of  the  injury  is  given  to  the 
employer  within  thirty  days,  and  the  action  is  com- 
menced within  one  year,  from  the  occurrence  of  the 
accident  causing  the  injury  or  death.  The  notice  re- 
quired by  this  section  shall  be  in  writing,  signed  by  the 
person  injured  or  by  some  one  in  his  behalf;  but  if 
from  physical  or  mental  incapacity  it  is  impossible  for 
the  person  injured  to  give  the  notice  within  the  time 
provided  in  said  section,  he  may  give  the  same  within 
ten  days  after  such  incapacity  is  removed,  and  in  case 
of  his  death  without  having  given  the  notice  and  without 
having  been  for  ten  days  at  any  time  after  his  injury 
of  sufficient  capacity  to  give  the  notice,  his  executor  or 
administrator  may  give  such  notice  within  thirty  days 
after  his  appointment?  But  no  notice  given  under  the 
provisions  of  this  section  shall  be  deemed  to  be  in- 
valid or  insufficient  solely  by  reason  of  any  inaccuracy 

1  This  clause  is  added  by  St.  1892,  ch.  260,  s.  2. 

2  This  provision  is  inserted  by  St.  1888,  ch.  155. 

For  further  provisions  relative  to  the  notice  here  required,  see 
Acts,  1894,  ch.  389,  which  is  given  on  page  55,  ante. 

13 


194          STATUTORY   TORTS   IN   MASSACHUSETTS. 

in  stating  the  time,  place  or  cause  of  the  injury : 
provided,  it  is  shown  that  there  was  no  intention  to 
mislead,  and  that  the  party  entitled  to  notice  was  not 
in  fact  misled  thereby. 

§  186.  The  Subject-matter  of  the  Section.  —  This 
section  deals  altogether  with  matters  relating  to 
practice  under  the  act.  Its  provisions,  in  the  first 
place,  fix  the  limits  to  the  amount  that  may  be 
recovered  as  damages ;  and,  in  the  second  place, 
regulate  the  matter  of  notice. 

As  to  the  first  point,  it  will  be  noticed  that  the 
section  makes  a  distinction  between  actions  for 
personal  injuries  and  actions  for  death  which  is 
instantaneous  or  without  conscious  suffering,  plac- 
ing different  limits  upon  the  amount  that  may  be 
recovered  in  each  case.1 

"  No  ACTION  FOR  THE  RECOVERY  OF  COMPENSATION 
FOR  INJURY  OR  DEATH  UNDER  THIS  ACT  SHALL  BE 
MAINTAINED,  UNLESS  NOTICE  OF  THE  TIME,  PLACE  AND 
CAUSE  OF  THE  INJURY  IS  GIVEN  TO  THE  EMPLOYER 
WITHIN  THIRTY  DAYS." 

§  187.  The  Requirement  of  Notice.  —  This  pro- 
vision requires  in  terms  the  giving  of  a  notice 
both  in  cases  under  section  one,  where  the  action 
is  brought  by  the  injured  employee  himself,  and  in 
cases  under  section  two,  where  the  suit  is  brought 
by  the  widow  or  dependent  next  of  kin.2 

1  Ramsdell  v.  New  York,  etc.    Railroad,  151    Mass.  245,   250 
(1890).     Gustafsen  v.  Washburn  &  Moen  Manuf.  Co.,  153  Mass. 
468,473  (1891),  semble. 

2  See  Daly  v.  New  Jersey   Steel  &  Iron  Co.,  155  Mass.  1,  3 
(1891). 


THE   LIABILITY   OF   EMPLOYERS.  195 

The  requirement  of  notice  creates  a  strict  con- 
dition precedent,  and  if  a  plaintiff  has  failed  for 
any  reason  to  comply  with  it,  he  cannot  maintain 
his  action.1  Indeed,  so  strictly  is  this  condition 
enforced  that,  in  order  to  satisfy  it,  the  notice 
must  be  actually  served  before  the  writ  in  the 
action  is  drawn :  therefore,  although  a  notice, 
given  after  the  date  of  the  writ,  is  served  upon  the 
employer  within  the  required  number  of  days  after 
the  accident,  it  will  not  support  the  action.2  These 
provisions  as  to  notice  have,  of  course,  no  applica- 
tion to  actions  at  common  law.3 

§  188.  The  Construction  of  the  Notice.  —  The  in- 
tention of  the  legislature  in  enacting  the  provisions 
as  to  notice  appears  to  have  been  to  have  the  em- 
ployer apprised  of  the  claims  for  damages  to  be 
made  against  him  with  such  a  reasonable  degree 
of  promptness  as  would  enable  him  to  investigate 
the  case,  without  delay,  and  to  secure  and  preserve 
his  evidence.  Since  this  object  can  be  accom- 
plished equally  well  without  insisting  upon  exact 
accuracy  of  statement  in  all  respects,  the  contents 
of  a  notice  given  under  this  section  is  not  to  be 
construed  with  technical  strictness.  Nevertheless, 
it  should  contain  a  reasonably  correct  statement 
of  the  time,  place,  and  cause  of  the  accident,  and 
should  also  make  it  apparent  that  it  was  intended 
to  be  made  the  basis  of  a  claim  for  damages 

*  Foleyp.  Pettee  Machine  Works,  149  Mass.  294,  296  (1889). 

2  Veginan  v.  Morse,  160  Mass.  143  (1893). 

»  Ryalls  v.  Mechanics'  Mills,  150  Mass.  190,  196  (1889). 


196          STATUTORY  TORTS  IN   MASSACHUSETTS. 

against  the  employer,  and  was  given  by,  or  on 
behalf  of,  the  person  who  brings  the  suit.1 

The  question  of  the  sufficiency  of  such  a  notice 
is  to  be  determined  from  an  inspection  of  the 
whole  document,2  and  is  a  question  of  law  for  the 
court,  and  not  of  fact  for  the  jury.3 

§  189.  The  Statement  of  the  Time.  —  It  is  not 
necessary  to  state  in  the  notice  the  hour  at  which 
the  accident  happened  ;  a  statement  of  the  day 
alone  is  in  general  sufficient.4 

§  190.  The  Statement  of  the  Place.  —  It  seems  that 
while  it  may  not  be  necessary  to  describe  the  exact 
spot  where  the  accident  happened  with  accuracy  of 
detail,  yet  the  statement  should  be  sufficiently  full 
and  clear  so  that  the  place  can  be  identified  with 
reasonable  certainty.5 

§  191.  The  Statement  of  the  Cause.  —  A  simple 
statement  of  the  facts  relating  to  the  cause  of  the 
accident  is  sufficient  to  satisfy  the  requirements 
of  this  portion  of  the  section.  If  the  notice  docs 
this  much,  it  is  not  defective  merely  because  it  does 
not  state  the  ultimate  cause  of  the  accident.  Thus 
the  statement  that  the  injury  resulted  from  "  the 

1  Driscoll  v.  Fall  Kiver,  163  Mass.  105  (1895). 

2  Lyman  v.  Hampshire,  138  Mass.  74  (1884). 

3  Shea  v.  Lowell,  132  Mass.  187  (1882). 

*  Donahoe  v.  Old  Colony  Kailroad,  153  Mass.  356,  358,  361 
(1891);  and  §  50,  ante. 

6  See  §  51,  ante. 

For  notices  which  have  been  held  to  be  sufficient,  see  Donahoe 
».  Old  Colony  Railroad,  153  Mass.  356  (1891).  Brick  v.  Bosworth, 
162  Mass.  334,  337  (1894). 


THE   LIABILITY   OP    EMPLOYERS.  197 

falling  of  a  bank  of  earth"  is  a  sufficient  state- 
ment of  the  cause,  although  the  plaintiff  intended 
to  rely  upon  the  negligence  of  the  defendant's 
superintendent  in  not  properly  shoring  up  the 
bank.1 

And  it  has  been  held  that  such  a  notice  was  not 
defective  for  the  reason  that  it  did  not  state  the 
kind  of  negligence  which  caused  the  injury,  so  as 
to  apprise  the  defendant  as  to  which  clause  of 
section  one  of  the  statute  the  plaintiff  was  intend- 
ing to  rely.2  And  again,  that  a  notice  was  not 
defective  simply  because  it  stated  more  than  one 
cause  of  the  injury,  each  cause  being  sufficiently 
set  forth.8 

§  192.  The  Service  of  the  Notice.  —  The  notice 
required  by  this  provision  may  be  served  in  any 
manner  that  will  insure  its  reaching  the  employer 
within  the  required  time.  "  "Without  reference  to 
the  modes  of  service  prescribed  by  the  law  in  or- 
dinary cases  where  notice  is  to  be  given,  it  is 
enough  under  this  statute  if  a  notice  in  proper 
form  from  the  employee  comes  into  the  hands  of 
the  employer  within  thirty  days  after  the  accident." 
It  was  held,  therefore,  that  due  notice  was  given 
to  the  employer  where  a  notice  was  taken  to  the 
office  of  its  general  superintendent,  in  its  principal 
station  in  Boston,  and,  in  his  absence,  was  left  for 

*  Lynch  v.  Allyn,  160  Mass.  248,  255  (1893). 
2  Brick  v.  Bosworth,  162  Mass.  334,  336  (1894). 
8  Coughlan  v.  Cambridge,  166  Mass.  268,  276  (1896).    See  also 
§  52,  ante. 


198          STATUTORY   TORTS   IN   MASSACHUSETTS. 

him  there  with  a  young  man  who  appeared  to  be 
a  clerk.1 

§  193.  The  Allegation  of  Notice  in  the  Declara- 
tion. —  It  is  not  necessary  that  the  plaintiff  should 
allege  in  his  declaration  the  time  when  the  notice 
required  by  this  section  was  given  to  the  defend- 
ant. An  averment  that  it  was  "  duly  "  given  is 
sufficient.2 

"  THE  NOTICE  KEQTJIRED  BY  THIS  SECTION  SHALL  BE 
IN  WRITING,  SIGNED  BY  THE  PERSON  INJURED  OR  BY 
SOME  ONE  IN  HIS  BEHALF." 

§  194.  Signing  by  the  Attorney.  —  Under  this 
provision  a  notice  that  is  signed  with  his  own  name 
by  the  attorney  for  the  plaintiff  is  good,  where  there 
is  evidence  to  show  that  he  was  authorized  so  to 
do.3  In  the  absence  of  positive  evidence  of  such 
authority,  it  will  be  presumed,  especially  if  the  at- 
torney who  gave  the  notice  also  conducts  the  suit.4 

"  IN  CASE  OF  HIS  DEATH  WITHOUT  HAVING  GIVEN 
THE  NOTICE  AND  WITHOUT  HAVING  BEEN  FOR  TEN 
DAYS  AT  ANY  TIME  AFTER  HIS  INJURY  OF  SUFFICIENT 
CAPACITY  TO  GIVE  THE  NOTICE,  HIS  EXECUTOR  OR  AD- 
MINISTRATOR MAY  GIVE  SUCH  NOTICE." 

§  195.  The  giving  of  the  Notice  where  Death  is 
instantaneous.  —  The  question  as  to  who  should 

1  Shea  v.  New  York,  etc.  Railroad,  point  2,  decided  April  1; 
1899. 

2  Steffe  v.  Old  Colony  Railroad,  156  Mass.  262  (1892). 

8  Dolan  v.  Alley,  153  Mass.  380  (1891).     The  notice  in  that 

case  was  signed  "  C &  P ,  attorneys  for  Charles  Dolan." 

*  Steffe  v.  Old  Colony  Railroad,  156  Mass.  262  (1892). 


THE   LIABILITY   OF    EMPLOYERS.  199 

give  the  notice  in  cases  under  the  second  section, 
where  the  employee  was  instantly  killed  or  died 
without  conscious  suffering,  has  been  much  dis- 
cussed in  the  cases.  The  result  of  the  decisions  is 
that  in  such  cases  it  may  be  given  either  by  some 
person  on  behalf  of  the  deceased,  within  thirty 
days  after  the  occurrence  of  the  accident  which 
caused  the  death,1  or  by  the  executor  or  adminis- 
trator of  the  deceased  within  thirty  days  after  his 
appointment.2  A  notice  given  by  the  latter  will, 
therefore,  support  an  action  by  the  widow  or 
dependent  next  of  kin.3 

' '  BUT  NO  NOTICE  GIVEN  UNDER  THE  PROVISIONS  OP 
THIS  SECTION." 

§196.  Construction  of  the  Clause.  —  This  clause 
is  interpreted  as  limiting  the  scope  of  this  section 
to  "  those  extremes,  if  any,  lying  outside  the  com- 
mon law  rule,"  but  coming  within  the  provisions 
of  this  act,  "unless  a  case  shall  arise  in  which 
the  plaintiff,  although  he  has  a  remedy  at  common 
law,  insists  on  relying  upon  the  statute  alone."  4 

"  SHALL  BE  DEEMED  TO  BE  INVALID  OR  INSUFFI- 
CIENT .  .  .  :  PROVIDED,  IT  IS  SHOWN  THAT  THERE  WAS 
NO  INTENTION  TO  MISLEAD,  AND  THAT  THE  PARTY  EN- 
TITLED TO  NOTICE  WAS  NOT  IN  FACT  MISLED  THEREBY." 

1  Gustafsen  v.  Washbnrn  &  Moen  Manuf.  Co.,  153  Mass.  468 
(1891). 

2  Daly  v.  New  Jersey  Steel  &  Iron  Co.,  155  Mass.  1  (1891). 

8  Jones  v.  Boston  &  Albany  Railroad,  157    Mass.  51    (1892). 
Dickerman  v.  Old  Colony  Railroad,  157  Mass.  52  (1892). 
*  Ryalla  v.  Mechanics'  Mills,  150  Mass.  190,  196  (1889). 


200          STATUTORY   TORTS   IN   MASSACHUSETTS. 

197.  Effect  of  the  Provision.  —  The  question  of 
the  sufficiency  or  insufficiency  of  a  notice  becomes 
immaterial  in  any  case  where  there  is  evidence, 
properly  submitted  to  the  jury,  showing  that  there 
was  no  intention  to  mislead,  and  that  the  defend- 
ant was  not  in  fact  misled,  by  the  notice  actually 
given.1  The  question  raised  by  this  provision  is, 
of  course,  one  of  fact,  the  burden  of  establishing 
which  rests  with  the  plaintiff  who  would  take 
advantage  of  it. 

SECTION  4.  Whenever  an  employer  enters  into  a 
contract,  either  written  or  verbal,  with  an  independent 
contractor  to  do  part  of  such  employer's  work,  or 
whenever  such  contractor  enters  into  a  contract  with  a 
sub-contractor  to  do  all  or  any  part  of  the  work  com- 
prised in  such  contractor's  contract  with  the  employer, 
such  contract  or  sub-contract  shall  not  bar  the  liability 
of  the  employer  for  injuries  to  the  employees  of  such 
contractor  or  sub-contractor,  by  reason  of  any  defect 
in  the  condition  of  the  ways,  works,  machinery  or 
plant,  if  they  are  the  property  of  the  employer,  or 
furnished  by  him,  and  if  such  defect  arose  or  had  not 
been  discovered  or  remedied,  through  the  negligence 
of  the  employer  or  of  some  person  entrusted  by  him 
with  the  duty  of  seeing  that  they  were  in  proper  con- 
dition. 

1  Drommie  v.  Hogan,  153  Mass.  29  (1891). 

For  a  case  where  it  was  held  that  the  evidence  failed  to  show 
that  the  notice  was  not  given  within  the  thirty  days  by  reason  of 
mental  or  physical  incapacity,  see  Ledwidge  v.  Hathaway,  170 
Mass.  348  (1898).  And  sec  §  59,  ante. 


FOSTER 

ROGERS  BUILDING, 
BOBTQN, 


THE   LIABILITY   OF  EMPLOYERS.  201 

§  198.  The  Effect  of  the  Section.  —  He  who  ill- 
vites  another  to  use  his  premises  or  appliances 
upon  his  premises  is  bound  to  exercise  due  care  in 
order  to  see  that  they  are  in  a  safe  and  suitable 
condition.  Upon  this  familiar  duty  is  based  the 
common  law  rule  that  if  a  principal  furnishes 
premises  or  appliances  upon  his  premises  to  an 
independent  contractor  whom  he  has  employed  to 
do  his  work,  he  will  be  liable  to  an  employee  of 
such  contractor  for  any  injury  sustained  by  reason 
of  his  failure  to  use  reasonable  care  and  diligence 
in  order  to  see  that  they  were  in  proper  condition. 
Under  this  rule  the  principal  is  equally  liable 
whether  the  negligence  is  his  own  or  that  of  his 
employee  whom  he  has  intrusted  with  the  duty  of 
seeing  that  the  premises  or  appliances  are  in  proper 
condition.1  The  provisions  of  section  four  of  the 
statute,  it  seems  safe  to  say,  go  so  far  as  to  lay 
down  the  same  rule  ;  that  they  will  go  further 
may  admit  of  serious  question.  With  reference  to 
that  question  it  is  hardly  possible  to  say  more  than 
that,  while  no  doubt  the  purpose  of  the  section  was 
to  enlarge  still  further  the  liability  of  employers,  it 
is  not  in  the  present  state  of  the  common  law  quite 
clear  in  just  what  direction  that  purpose  is  to  have 
effect.2 

1  Mulchey  v.  Methodist  Religious  Society,  125  Mass.  487  (1878), 
and  cases    cited.      Drommie  v.   Hogan,    153   Mass.    29    (1891). 
Coughtry  v.  Globe  Woolen  Co.,  56  N.  Y.  124  (1874). 

2  See  Wood,  Master  and  Servant,  §  338,  where  it  is  suggested 
that  if  the  principal  agrees  to  furnish  appliances  for  the  work  not 


202          STATUTORY   TORTS   IN   MASSACHUSETTS. 

§  199.  The  Contractor  may  be  the  "  Person  en- 
trusted." —  Under  the  provisions  of  this  section,  a 
person  may  occupy  toward  the  employer  a  dual 
relation :  he  may  be  at  the  same  time  an  independ- 
ent contractor  and  a  person  intrusted  with  the 
duty  of  seeing  that  the  ways,  works,  machinery,  or 
plant  are  in  proper  condition.  If  such  a  person  is 
negligent  in  the  performance  of  the  duties  of  the 
latter  position,  the  fact  that  he  is  also  an  independ- 
ent contractor  will  in  no  wise  alter  or  affect  the 
liability  of  the  employer  under  this  section  for  the 
consequences  of  that  negligence.1 

SECTION  5.  An  employee  or  his  legal  representatives 
shall  not  be  entitled  under  this  act  to  any  right  of 
compensation  or  remedy  against  his  employer  in  any 
case  where  such  employee  knew  of  the  defect  or  negli- 
gence which  caused  the  injury,  and  failed  within  a 
reasonable  time  to  give,  or  cause  to  be  given,  infor- 
mation thereof  to  the  employer,  or  to  some  person 
superior  to  himself  in  the  service  of  the  employer, 
who  had  entrusted  to  him  some  general  superintend- 
ence. 

connected  with  his  premises,  he  would  not  be  answerable  to  the 
contractor's  employees  for  any  defects  therein.  If  this  should 
prove  to  be  the  common  law,  it  opens  up  a  possible  field  for  the 
operation  of  this  section  that  is  in  accordance  with  its  manifest 
purpose.  And  see  the  discussion  in  Coughtry  v.  Globe  Woolen 
Co.,  56  N.  Y.  124  (1874). 

1  Toomey  v.  Donovan,  158  Mass.  232,  236  (1893). 

For  a  case  which  was  held  on  the  facts  not  to  come  within  the 
provisions  of  section  four,  see  Dane  v.  Cochrane  Chemical  Co., 
164  Mass.  453  (1895). 


THE   LIABILITY   OP   EMPLOYERS.  203 

§  200.  The  Section  creates,  not  a  Condition,  but  a 
Defence.  —  As  construed  by  the  court,  this  section 
does  not  create  a  condition  precedent,  the  burden 
of  showing  compliance  with  which  must  be  sus- 
tained by  the  employee  before  he  can  maintain  his 
action.  Its  effect  is  simply  to  create  a  special  de- 
fence for  the  benefit  of  the  employer.  Upon  this 
point  the  court  said  in  Connolly  v.  Waltham : * 
"  The  fifth  section  is  not  a  part  of  the  provisions 
which  define  the  circumstances  essential  to  show 
that  a  plaintiff  comes  within  the  right  of  recovery 
granted  in  the  first  section  of  the  statute  ;  nor  is 
it  a  requirement  that  something  shall  at  all  events 
be  done  before  the  right  of  action  accrues,  such  as 
giving  due  notice  of  the  injury,  but  it  excepts 
from  the  right  to  recover  employees  who,  knowing 
the  danger,  fail  to  give  information  thereof  within 
a  reasonable  time.  As  this  exception  is  not  in 
that  portion  of  the  statute  which  gives  the  right 
of  action,  and  as  the  failure  to  give  information 
does  not  prevent  recovery  unless  the  employee 
knows  of  the  defect  or  negligence  so  long  a  time 
before  his  injury  that  he  can  reasonably  give  in- 
formation, and  with  such  knowledge  fails  to  give 
the  information,  it  is  a  matter  of  defence  only,  and 
need  not  be  alleged  or  proved  by  the  plaintiff." 

1  156  Mass.  368,  371  (1892). 

For  a  case  involving  the  question  of  the  liability  over  of  a  per- 
son to  a  defendant  against  whom  a  judgment  has  been  recovered 
under  the  Employer's  Liability  Act,  see  Consolidated,  etc. 
Machine  Company  r.  Bradley,  171  Mass.  127  (1898). 


204          STATUTORY  TORTS   IN   MASSACHUSETTS. 


PART  V. 

THE  LIABILITY   OF   OTHER   PERSONS   AND 
CORPORATIONS. 

I.     Telegraph  Companies. 

PUBLIC  STATUTES,  CHAPTER  109,  SECTION  12.  When 
an  injury  is  done  to  a  person  or  ,to  property  by  the 
posts,  wires,  or  other  apparatus  of  a  telegraphic  line, 
the  company  shall  be  responsible  in  damages  to  the 
party  injured.  If  the  same  are  erected  on  a  highway 
or  town  way,  the  city  or  town  shall  not,  by  reason  of 
anything  contained  in  this  chapter  or  done  thereunder, 
be  discharged  from  its  liability,  but  all  damages  and 
costs  recovered  against  a  city  or  town  on  account  of 
such  injury  shall  be  reimbursed  by  the  company  owning 
the  posts,  wires,  or  other  apparatus. 

§  201.  The  Scope  of  the  Section.  —  There  is  as 
yet  no  decision  that  defines  the  precise  field  for  the 
operation  of  this  statute.  However,  in  the  course 
of  the  opinion  in  Commonwealth  v.  Boston  1  the 

1  97  Mass.  555,  558  (1867). 

In  Young  v.  Yarmouth,  9  Gray,  386  (1857),  it  was  held  that  an 
action  could  not  be  maintained  against  a  town  for  an  injury  occa- 
sioned to  a  traveller  by  telegraph  poles  placed  in  the  highway 
under  a  license  from  the  selectmen. 


LIABILITY  OF  OTHER  PERSONS  AND  CORPORATIONS.    205 

court  says  of  it :  "  Whether  this  section  is  to  be 
construed  as  giving  or  preserving  a  right  of  action, 
where  the  injury  is  caused  by  the  mere  placing  of 
the  poles  at  the  places  appointed  for  them,  may 
perhaps  admit  of  doubt.  The  liability  of  the  poles 
to  decay  and  fall,  or  to  lean  over,  and  of  the  wires 
to  become  displaced,  would  give  the  provision 
effect,  if  the  right  of  the  original  location  of  them 
was  regarded  as  unquestionable."  Beyond  this 
dictum  there  appears  to  be  nothing  bearing  upon 
the  scope  or  interpretation  of  this  section  of  the 
statute.1 

1  In  Hector  v.  Boston  Electric  Light  Co.,  161  Mass.  558,  570 
(1894),  the  Court  touched  upon,  but  found  it  unnecessary  to 
decide,  the  question  whether  this  section  was  intended  to  include 
injuries  received  from  an  electric  current  transmitted  through 
wires. 

Statute  1883,  ch.  221,  a.  1.  All  provisions  of  law  granting  to 
persons  and  corporations  authority  to  erect,  lay  and  maintain  and 
to  cities  and  towns  authority  to  regulate  telegraph  and  telephone 
lines,  except  sections  sixteen  and  eighteen  of  chapter  one  hundred 
and  nine  of  the  Public  Statutes,  shall,  so  far  as  applicable,  apply 
to  lines  for  the  transmission  of  electricity  for  the  purpose  of 
lighting. 

S.  2.    This  act  shall  take  effect  upon  its  passage.   [June  2, 1883.] 

This  statute  "  relates  solely  to  the  authority  to  erect,  lay,  and 
maintain  lines  for  the  transmission  of  electricity  for  the  purpose  of 
lighting,  and  to  the  regulation  of  such  lines  ;  it  does  not  relate  to 
the  liability  of  electric  light  companies  for  injuries  received  by  any 
person  from  the  posts,  wires,  or  other  apparatus  of  such  com- 
panies." This  section  twelve  of  chapter  one  hundred  and  nine 
does  not,  therefore,  apply  to  them.  Hector  v.  Boston  Electric 
Light  Company,  161  Mass.  558,  570  (1894).  Illingsworth  v.  Same, 
161  Mass.  583,  585  (1894). 


206          STATUTORY  TORTS   IN   MASSACHUSETTS. 

II.    Cras  and  Electric  Light   Corporations. 

ACT,  1897,  CHAPTER  416.  An  Act  to  Authorize 
Actions  of  Tort  Against  Gas  and  Electric  Light  Cor- 
porations for  the  Loss  of  Life  By  Negligence. 

If  by  reason  of  the  negligence  or  carelessness  of  a  cor- 
poration operating  a  gas  or  electric  light  plant  or  system, 
or  of  the  unfitness  or  gross  negligence  or  carelessness 
of  its  servants  or  agents  while  engaged  in  its  business, 
the  life  of  a  person  who  is  exercising  due  diligence 
and  who  is  not  in  the  emplo}'ment  of  such  corporation, 
is  lost,  the  corporation  shall  be  liable  in  damages  not 
exceeding  five  thousand  dollars  nor  less  than  five 
hundred  dollars,  to  be  assessed  with  reference  to  the 
degree  of  culpability  of  said  corporation  or  of  its 
servants  or  agents,  and  to  be  recovered  in  an  action  of 
tort  commenced  within  one  year  from  the  injury  caus- 
ing the  death,  by  the  executor  or  administrator  of  the 
deceased  person,  for  the  use  of  the  widow  and  children 
of  the  deceased,  in  equal  moieties ;  or  if  there  are  no 
children,  for  the  use  of  the  widow ;  or  if  there  is  no 
widow,  for  the  use  of  the  next  of  kin.1 

§  202.  The  Construction  of  the  Act.  —  This  statute 
does  not  create  a  distinctly  new  liability,  but  rather 
extends  a  liability  already  in  existence  so  as  to 
make  it  apply  to  new  parties.  In  making  this 
extension  the  legislature  has  employed  throughout 
the  vital  provisions,  the  identical  words  and  phrases 
used  in  those  earlier  statutes  that  impose  the  same 

1  Approved  May  21,  1897. 


LIABILITY  OF  OTHER  PERSONS  AND  CORPORATIONS.   20T 

liability.  Consequently,  in  approaching  the  con- 
struction of  this  act,  it  may  be  assumed  that  the 
legislature,  in  adopting  language  which  had  al- 
ready received  judicial  interpretation  as  applied  to 
the  same  subject  matter,  sanctioned  that  construc- 
tion, nothing  to  the  contrary  appearing  in  the  act 
itself.  Therefore,  the  law  developed  under  those 
earlier  statutes  may,  it  would  seem,  be  invoked  in 
aid  of  the  interpretation  of  this  later  statute.1 

III.  Persons  and  Corporations  in  general. 

ACTS,  1898,  CHAPTER  565.  An  Act  Relative  to 
the  Liability  of  Persons  and  Corporations  for  Negli- 
gence Resulting  in  the  Death  of  Persons  not  in  Then: 
Employ. 

If,  by  reason  of  the  negligence  or  carelessness 
of  any  person  or  corporation,  or  of  the  gross  negli- 
gence or  carelessness  of  any  servant  or  agent  of  any 
person  or  corporation  while  engaged  in  the  business 
of  such  person  or  corporation,  the  life  of  a  person  who 
is  exercising  due  diligence  and  who  is  not  in  the  em- 

1  Whitcomb  v.  Rood,  20  Vt.  49  (1847). 

For  the  construction  of  the  earlier  statutes,  see  §§82-113. 

The  statute  of  1883,  chapter  221,  makes  all  provisions  of  the 
statutes  as  to  the  erection,  etc.,  of  telegraph  and  telephone  lines 
apply,  "so  far  as  applicable,"  to  electric-light  companies.  It  has 
been  held  that  the  provisions  of  section  twelve  of  chapter  one 
hundred  and  nine  of  the  Public  Statutes,  which  impose  a  liability 
for  personal  injury  upon  telegraph  companies,  do  not,  by  virtue  of 
this  statute  of  1883,  apply  to  electric-light  companies.  Hector  v. 
Boston  Electric  Light  Company,  161  Mass.  558,  570  (1894).  And 
see  §  201,  note. 


208          STATUTORY  TORTS  IN  MASSACHUSETTS. 

ploy  or  service  of  such  person  or  corporation  is  here- 
after lost,  such  person  or  corporation  shall  be  liable  in 
damages  not  exceeding  five  thousand  dollars  nor  less 
than  five  hundred  dollars,  to  be  assessed  with  reference 
to  the  degree  of  culpability  of  such  person  or  corpora- 
tion, or  of  the  servants  or  agents  of  such  person  or 
corporation,  and  to  be  recovered  in  an  action  of  tort 
commenced  within  one  year  from  the  injury  which 
caused  death,  by  the  executor  or  administrator  of  the 
deceased  person,"  for  the  use  of  the  widow  and  children 
of  the  deceased  in  equal  moieties ;  or  if  there  are  no 
children,  to  the  use  of  the  widow ;  or  if  there  is  no 
widow,  to  the  use  of  the  next  of  kin.1 

1  Approved  June  23,  1898. 

This  statute  extends  broadly  a  liability  that,  up  to  the  aate  of 
its  enactment,  had  been  confined  to  particular  classes  of  persons 
and  corporations:  railroads,  Pub.  Sts.  ch.  112,  s.  212.  See  §§  82- 
101.  Street  railways,  Pub-  Sts.  ch.  112,  s.  212,  and  St.  1886, 
ch.  140.  See  §§  110-113.  Common  carriers,  Pub.  Sts.  ch.  73,  s.  6. 
See  §  109.  Gas  and  electric-light  companies,  St.  1897,  ch.  416. 
See  p.  206. 

For  construction,  see  §  202,  ante,  and  notes. 


APPENDIX    A. 

PUBLIC   STATUTES,   CHAPTER  52. 
OF  THE  REPAIRS  OF  WAYS  AND  BRIDGES. 

SECTION  17.  If  the  life  of  a  person  is  lost  by 
reason  of  a  defect  or  want  of  repair  of  a  highway, 
town  way,  causeway,  or  bridge,  or  for  want  of  suitable 
rails  on  such  way  or  bridge,  the  county,  town,  or 
person  by  law  obliged  to  repair  the  same  shall  be 
liable  in  damages  not  exceeding  one  thousand  dollars, 
to  be  assessed  with  reference  to  the  degree  of  cul- 
pability of  the  county,  town,  or  person  liable,  and  re- 
covered in  an  action  of  tort,  commenced  within  one 
year  from  the  injury  causing  the  death,  by  the  execu- 
tor or  administrator  of  the  deceased  person,  for  the 
use  of  the  widow  and  children  of  the  deceased  in  equal 
moieties,  or,  if  there  are  no  children,  to  the  use  of  the 
widow,  or,  if  no  widow,  to  the  use  of  the  next  of  kin: 
provided,  that  the  county,  town,  or  person  had  previous 
reasonable  notice  of  the  defect  or  want  of  repair  of 
such  way  or  bridge. 

SECTION  18.  If  a  person  receives  or  suffers  bodily 
injury,  or  damage  in  his  property,  through  a  defect  or 
want  of  repair  or  of  sufficient  railing  in  or  upon  a 
highway,  town  way,  causeway,  or  bridge,  which  might 
have  been  remedied,  or  which  damage  or  injury  might 

14 


210  APPENDIX   A. 

have  been  prevented  by  reasonable  care  and  diligence 
on  the  part  of  the  county,  town,  place,  or  persons  by 
law  obliged  to  repair  the  same,  he  may  recover,  in  the 
manner  hereinafter  provided,  of  the  said  county,  town, 
place,  or  persons,  the  amount  of  damage  sustained 
thereby,  if  such  county,  town,  place,  or  persons  had 
reasonable  notice  of  the  defect,  or  might  have  had 
notice  thereof  by  the  exercise  of  proper  care  and 
diligence  on  their  part ;  but  no  such  damage  shall  be 
recovered  by  a  person  whose  carriage  and  the  load 
thereon  exceed  the  weight  of  six  tons. 

SECTION  19. l  A  person  so  injured  shall  within  ten 
days  thereafter,  if  such  defect  or  want  of  repair  is 
caused  by  or  consists  of  snow  or  ice,  or  both,  whether 
wholly  or  in  part,  and  in  all  other  cases  within  thirty 
days  thereafter,  give  to  the  county,  town,  place  or 
persons  by  law  obliged  to  keep  said  highway,  town 
way,  causeway,  or  bridge  in  repair,  notice  of  the  time, 
place,  and  cause  of  the  said  injury  or  damage;  and  if 
the  said  county,  town,  place,  or  persons  do  not  pay 
the  amount  thereof,  he  may  within  two  years  after  the 
date  of  said  injury  or  damage  bring  an  action  of  tort 
against  said  county,  town,  place,  or  persons  to  recover 
the  same.  But  no  notice  given  under  the  provisions 
of  this  section  shall  be  deemed  to  be  invalid  or  in- 
sufficient solely  by  reason  of  any  inaccuracy  in  stating 
the  time,  place,  or  cause  of  the  injury :  provided,  that 
it  is  shown  that  there  was  no  intention  to  mislead,  and 
that  the  party  entitled  to  notice  was  not  in  fact  mis- 
led thereby. 

1  As  amended  by  Acts,  1882,  ch.  36;  Acts,  1888,  ch.  114;  Acts, 
1894,  ch.  422,  s.  1. 


APPENDIX  A.  211 

SECTION  20.  No  person  shall  recover  from  a  town, 
city,  county,  or  place,  in  any  such  action,  a  greater 
sura  for  damages  or  injury  than  one-fifth  of  one 
per  cent  of  the  state  valuation  of  such  town,  city, 
county,  or  place  last  preceding  the  commencement 
of  the  action,  nor  a  greater  sum  than  four  thousand 
dollars. 

SECTION  21.  The  notice  required  by  section  nine- 
teen shall  be  in  writing,  signed  by  the  person  injured 
or  by  some  one  in  his  behalf,  and  may  be  given,  in  the 
case  of  a  county,  to  one  of  the  county  commissioners 
or  to  the  county  treasurer  ;  in  the  case  of  a  city,  to  the 
mayor,  the  city  clerk,  or  the  treasurer ;  and  in  the 
case  of  a  town,  to  one  of  the  selectmen  or  to  the  town 
treasurer  or  clerk ;  but  if  from  physical  or  mental 
incapacity  it  is  impossible  for  the  person  injured  to 
give  the  notice  within  the  time  provided  in  said  section, 
he  may  give  the  same  within  ten  days  after  such  in- 
capacity is  removed,  and  in  case  of  his  death  without 
having  given  the  notice,  and  without  having  been  for 
ten  days  at  any  time  after  his  injury  of  sufficient 
capacity  to  give  the  notice,  his  executor  or  administra- 
tor may  give  such  notice  -within  thirty  days  after  his 
appointment. 

SECTION  22.  If,  before  the  entry  of  an  action  under 
section  eighteen,  the  defendant  tenders  to  the  plaintiff 
the  amount  which  he  would  be  entitled  to  recover, 
together  with  all  legal  costs,  and  the  plaintiff  does  not 
accept  the  same,  and  does  not  recover  upon  the  trial 
more  than  the  sum  so  tendered,  the  defendant  shall 
recover  his  costs. 


212  APPENDIX   A. 


ACTS,  1887,  CHAPTER  270. 

AN  Act  to  Extend  and  Regulate  the  Liability  of 
Employers  to  Make  Compensation  for  Personal  In- 
juries Suffered  by  Employees  in  Their  Service. 

SECTION  1.  Where,  after  the  passage  of  this  act, 
personal  injury  is  caused  to  an  employee,  who  is  him- 
self in  the  exercise  of  due  care  and  diligence  at  the 
time :  — 

(1)  By  reason  of  any  defect  in  the  condition  of  the 
ways,  works  or  machinery  connected  with  or  used  in 
the  business  of  the  employer,  which   arose   from   or 
had  not  been  discovered  or  remedied   owing  to  the 
negligence  of  the  employer  or  of  any  person  in  the 
service  of   the   employer  and  entrusted  by  him   with 
the   duty    of   seeing    that  the    ways,   works  or   ma- 
chinery were  in  proper  condition ;  or 

(2)  By  reason  of  the  negligence  of   any  person  in 
the  service  of  the  employer,  entrusted  with  and  exer- 
cising superintendence,  whose  sole  or  principal   duty 
is   that    of   superintendence,   or,    in   the    absence   of 
such  superintendent,  of  any  person  acting  as  super- 
intendent with  the  authority  or  consent  of  such  em- 
ployer; or1 

(3)  By  reason  of  the  negligence  of  any  person  in  the 
service  of  the  employer  who  has  the  charge  or  control 
of  any  signal,  switch,  locomotive  engine  or  train  upon 
a  railroad,  the  employee,  or  in  case  the  injury  results 
in  death  the  legal  representatives  of  such  employee, 
shall  have  the  same  right  of  compensation  and  remedies 
against  the  employer  as  if  the  employee  had  not  been 

1  As  amended  by  Acts,  1894,  ch.  499. 


APPENDIX   A.  213 

an  employee  of  nor  in  the  service  of  the  employer,  nor 
engaged  in  its  work.  And  in  case  such  death  is  not  in- 
stantaneous, or  is  preceded  by  conscious  suffering,  said 
legal  representatives  may  in  the  action  brought  under 
this  section,  except  as  hereinafter  prodded,  also  recover 
damages  for  such  death.  The  total  damages  awarded 
hereunder,  both  for  said  death  and  said  injury,  shall 
not  exceed  five  thousand  dollars,  and  shall  be  appor- 
tioned by  the  jury  between  the  legal  representatives 
and  the  persons,  if  any,  entitled  under  the  succeeding 
section  of  this  act,  to  bring  an  action  for  instantaneous 
death.  If  there  are  no  such  persons  then  no  damages 
for  such  death  shall  be  recovered,  and  the  damages, 
so  far  as  the  same  are  awarded  for  said  death,  shall  be 
assessed  with  reference  to  the  degree  of  culpability  of 
the  employer  herein,  or  the  person  for  whose  negligence 
he  is  made  liable.1  A  car  in  use  by  or  in  the  posses- 
sion of  a  railroad  company  shall  be  considered  a  part 
of  the  ways,  works  or  machinery  of  the  company  using 
or  having  the  same  in  possession,  within  the  meaning 
of  this  act,  whether  such  car  is  owned  by  it  or  by  some 
other  company  or  person.2 

SECTION  2.  Where  an  employee  is  instantly  killed  or 
dies  without  conscious  suffering,  as  the  result  of  the 
negligence  of  an  employer,  or  of  the  negligence  of 
any  person  for  whose  negligence  the  employer  is  liable 
under  the  provisions  of  this  act,  the  widow  of  the 
deceased,  or  in  case  there  is  no  widow,  the  next  of  kin, 
provided  that  such  next  of  kin  were  at  the  time  of  the 
death  of  such  employee  dependent  upon  the  wages  of 
such  employee  for  support,  may  maintain  an  action  for 

1  Amendment  added  by  Acts,  1892,  ch.  260,  a.  1. 

2  Added  by  Acts,  1893,  ch.  359. 


214  APPENDIX  A. 

damages  therefor  and  may  recover  in  the  same  manner, 
to  the  same  extent,  as  if  the  death  of  the  deceased 
had  not  been  instantaneous,  or  as  if  the  deceased  had 
consciously  suffered. 

SECTION  3.  Except  in  "actions  brought  by  the  personal 
representatives  under  section  one  of  this  act  to  recover 
damages  for  both  the  injury  and  death  of  an  em- 
ployee,1 the  amount  of  compensation  receivable  under 
this  act  in  cases  of  personal  injury  shall  not  exceed 
the  sum  of  four  thousand  dollars.  In  case  of  death 
which  follows  instantaneously  or  without  conscious 
suffering,1  compensation  in  lieu  thereof  may  be  re- 
covered in  not  less  than  five  hundred  and  not  more 
than  five  thousand  dollars,  to  be  assessed  with  refer- 
ence to  the  degree  of  culpability  of  the  employer  here- 
in, or  the  person  for  whose  negligence  he  is  made 
liable  ;  and  no  action  for  the  recovery  of  compensation 
for  injury  or  death  under  this  act  shall  be  maintained, 
unless  notice  of  the  time,  place  and  cause  of  the  in- 
jury is  given  to  the  employer  within  thirty  days,  and 
the  action  is  commenced  within  one  year,  from  the 
occurrence  of  the  accident  causing  the  injury  or  death. 
The  notice  required  by  this  section  shall  be  in  writing, 
signed  by  the  person  injured  or  by  some  one  in  his  be- 
half; but  if  from  physical  or  mental  incapacity  it  is 
impossible  for  the  person  injured  to  give  the  notice  with- 
in the  time  provided  in  said  section,  he  may  give  the 
same  within  ten  days  after  such  incapacity  is  removed, 
and  in  case  of  his  death  without  having  given  the  notice 
and  without  having  been  for  ten  days  at  any  time  after 
his  injury  of  sufficient  capacity  to  give  the  notice,  his 
executor  or  administrator  may  give  such  notice  within 

1  This  provision  is  added  by  Acts.  1892,  ch.  260,  s.  2. 


APPENDIX    A.  215 

thirty  days  after  his  appointment.1  But  no  notice  given 
under  the  provisions  of  this  section  shall  be  deemed  to 
be  invalid  or  insufficient  solely  by  reason  of  any  in- 
accuracy in  stating  the  time,  place  or  cause  of  the 
injury :  provided,  it  is  shown  that  there  was  no  in- 
tention to  mislead,  and  that  the  party  entitled  to 
notice  was  not  in  fact  misled  thereby. 

SECTION  4.  Whenever  an  employer  enters  into  a 
contract,  either  written  or  verbal,  with  an  independent 
contractor  to  do  part  of  such  employer's  work,  or 
whenever  such  contractor  enters  into  a  contract  with 
a  sub-contractor  to  do  all  or  any  part  of  the  work 
comprised  in  such  contractor's  contract  with  the  em- 
ployer, such  contract  or  sub-contract  shall  not  bar  the 
liability  of  the  employer  for  injuries  to  the  employees 
of  such  contractor  or  sub-contractor,  by  reason  of  any 
defect  in  the  condition  of  the  ways,  works,  machinery 
or  plant,  if  they  are  the  property  of  the  employer,  or 
furnished  by  him,  and  if  such  defect  arose  or  had  not 
been  discovered  or  remedied,  through  the  negligence 
of  the  employer  or  of  some  person  entrusted  by  him 
with  the  duty  of  seeing  that  they  were  in  proper  con- 
dition. 

SECTION  5.  An  employee  or  his  legal  representatives 
shall  not  be  entitled  under  this  act  to  any  right  of 
compensation  or  remedy  against  his  employer  in  any 
case  where  such  employee  knew  of  the  defect  or  negli- 
gence which  caused  the  injury,  and  failed  within  a 
reasonable  time  to  give,  or  cause  to  be  given,  informa- 
tion thereof  to  the  employer,  or  to  some  person  su- 
perior to  himself  in  the  service  of  the  employer,  who 
had  entrusted  to  him  some  general  superintendence. 

1  This  provision  is  inserted  by  Acts,  1888,  ch.  155. 


216  APPENDIX  4, 

SECTION  6.  Any  employer  who  shall  have  contrib- 
uted to  an  insurance  fund  created  and  maintained  for 
the  mutual  purpose  of  indemnifying  an  employee  for  per- 
sonal injuries  for  which  compensation  may  be  recovered 
under  this  act,  or  to  any  relief  society  formed  under 
chapter  two  hundred  and  forty-four  of  the  acts  of  the 
year  eighteen  hundred  and  eighty-two,  as  authorized 
by  chapter  one  hundred  and  twenty-five  of  the  acts 
of  the  year  eighteen  hundred  and  eighty-six,  may 
prove,  in  mitigation  of  the  damages  recoverable  by 
an  employee  under  this  act,  such  proportion  of  the 
pecuniary  benefit  which  has  been  received  by  such 
employee  from  any  such  fund  or  society  on  account  of 
such  contribution  of  said  employer,  as  the  contribution 
of  such  employer  to  such  fund  or  society  bears  to  the 
whole  contribution  thereto. 

SECTION  7.  This  act  shall  not  apply  to  injuries 
caused  to  domestic  servants,  or  farm  laborers,  by  other 
fellow  employees,  and  shall  take  effect  on  the  first  day 
of  September,  eighteen  hundred  and  eighty-seven. 


APPENDIX    B. 

THE  DEVELOPMENT  OF  THE  STATUTES  IMPOS- 
ING LIABILITY  UPON  MUNICIPAL  CORPORA- 
TIONS FOR  CAUSING  PERSONAL  INJURY  OR 
DEATH. 

Legislation  upon  this  subject  dates  back  to  a 
very  early  period.  See  Mass.  Col.  St.  1648  ;  2  Mass. 
Col.  Rec.  229 ;  Mass.  Col.  Sts.  (ed.  1672)  12 ;  Prov. 
St.  1693-94,  c.  6,  ss.  1,  6  ;  1  Prov.  Laws  (State  ed.) 
136,  137 ;  Anc.  Chart.  55,  56,  267,  269.  But  the 
first  statute  enacted  after  the  adoption  of  the  Con- 
stitution was  that  of  1786,  ch.  81,  s.  7.  This  act 
provided  that  "  if  any  person  shall  lose  a  limb, 
break  a  bone  or  receive  any  other  injury  in  his 
person  "  through  any  defect  in  the  public  ways,  he 
may  recover  of  the  county,  town,  or  person  obliged 
to  keep  same  in  repair,  in  case  they  had  reason- 
able notice  of  the  defect,  double  the  damages  sus- 
tained ;  and  if  the  life  of  a  person  is  lost  through 
such  defect,  "  or  for  want  of  rails  on  any  bridge," 
the  county,  town,  or  persons  obliged  to  repair  such 
way  shall  be  liable  to  a  penalty  of  one  thousand 
pounds,  to  be  recovered  by  indictment  or  present- 
ment and  to  be  paid  to  the  executor  or  adminis- 
trator, "  for  the  use  of  the  heirs,  devisees  or 


218  APPENDIX  B. 

creditors,"  provided  that  actual  notice  of  the  want 
of  repair  had  been  given  in  a  manner  specifically 
required. 

The  law  remained  substantially  in  this  form 
down  to  the  time  of  the  revision  in  1836.  Several 
important  changes  were  then  made.  The  latter 
part  of  the  statute  of  1786,  covering  the  provisions 
relative  to  causing  death,  was  embodied  in  a  sepa- 
rate section,  and  the  requirement  as  to  notice  was 
so  far  modified  as  to  require  simply  that  "  the 
county,  town,  or  person  had  previous  reasonable 
notice  of  the  defect."  Rev.  Sts.  ch.  25,  s.  21.  The 
first  portion  of  the  statute  of  1786  —  that  portion 
containing  the  provisions  as  to  causing  injury  to 
the  person  —  was  also  made  a  separate  section,  and 
so  amended  as  to  give  a  right  to  recover  the  amount 
of  damage  sustained  where  the  injury  was  caused 
by  a  defect  whicli  had  existed  for  the  space  of 
twenty-four  hours ;  and  to  recover  double  the 
damages  so  sustained  if  the  county,  town,  or  per- 
son had  reasonable  notice  of  the  defect.  Rev. 
Sts.  ch.  25,  s.  22.  The  twenty-third  section  of  the 
same  chapter  of  the  Revised  Statutes  introduced 
the  provision  relative  to  making  a  tender,  which 
was  retained  without  change  in  all  subsequent 
revisions. 

Two  years  later  the  legislature  inserted  into  the 
provisions  of  the  Revised  Statutes,  ch.  25,  s.  22, 
the  exemption  from  liability  where  the  vehicle  and 
load  exceeded  six  tons  in  weight.  Acts,  1838, 
ch.  104. 


APPENDIX  B.  219 

In  1850  that  provision  of  the  Revised  Statutes,  ch. 
25,  s.  22,  as  to  the  recovery  of  double  damages  was 
repealed,  and  the  section  so  amended  as  to  make 
the  recovery  of  the  damages  sustained  depend 
upon  the  condition :  "  if  such  county,  town,  or  per- 
sons had  reasonable  notice  of  the  defect,  want  of 
repair,  or  of  sufficient  railing,  or  if  the  same  had 
existed  for  the  space  of  twenty-four  hours  previous 
to  the  occurrence  of  the  injury."  Acts,  1850,  ch.  5. 

In  the  general  revision  ten  years  later  -the  pro- 
visions of  the  Revised  Statutes  as  to  causing  death, 
ch.  25,  s.  21,  were  simply  re-enacted  without  change, 
see  Gen.  Sts.  ch.  44,  s.  21 ;  while  the  provisions 
of  the  statute  of  1838,  ch.  104,  and  of  the  statute 
of  1850,  ch.  5,  were  combined  and  incorporated  in 
section  22  of  the  same  chapter. 

During  the  succeeding  seventeen  years  the  legis- 
lature made  no  alteration  in  this  law,  but  at  the 
end  of  that  period  several  changes  and  additions 
were  made.  Acts,  1877,  ch.  234.  This  act,  after 
providing  in  the  first  section  that  the  highways 
should  be  kept  in  repair  at  the  expense  of  the 
towns  in  which  they  were  situated,  so  altered  the 
liability  for  causing  personal  injury  as  to  make  it 
depend  upon  whether  the  defect  that  caused  it 
might  have  been  remedied,  or  the  damage  or  in- 
jury might  have  been  prevented  by  reasonable 
care  and  diligence  on  the  part,  of  the  county,  town, 
or  person  obliged  to  make  repairs,  and  added  the 
requirement,  "  if  such  county,  town,  place  or  per- 
sons had  reasonable  notice  of  the  defect  or  might 


220  APPENDIX  B. 

have  had  notice  thereof  by  the  exercise  of  proper 
care  and  diligence."  See  s.  2.  The  third  section 
provided  that  the  injured  party  should  within 
thirty  days  give  notice  of  the  time,  place,  and 
cause  of  the  injury,  and  placed  the  limit  to  the 
amount  that  might  be  recovered  at  four  thousand 
dollars.  And  the  fourth  section  provided  to  whom 
and  by  whom  said  notice  should  be  given,  and  also 
made  provision  for  the  giving  of  the  same  in  those 
cases  where  it  had  not  been  given  within  the  pre- 
scribed time  by  reason  of  physical  or  mental  in- 
capacity. In  the  following  year  an  additional 
limit  was  placed  upon  the  amount  that  might  be 
recovered,  so  as  to  restrict  it  to  a  sum  not  greater 
than  one-fifth  of  one  per  cent  of  the  valuation  of 
the  town.  Acts,  1878,  ch.  259. 

Two  acts  dealing  with  this  subject,  each  making 
important  changes,  were  passed  by  the  legislature 
in  1881.  The  first  of  these  changed  the  remedy, 
in  cases  where  death  was  caused,  from  indictment 
to  an  action  of  tort,  to  be  brought  within  one  year 
by  the  executor  or  administrator  of  the  deceased, 
and  provided  that  the  amount  recovered,  which 
should  not  exceed  one  thousand  dollars,  should  be 
assessed  according  to  the  degree  of  culpability  of 
the  county  or  town.  Acts,  1881,  ch.  199,  ss.  4,  5. 
The  second  of  these  acts  so  amended  the  provisions 
of  the  statute  of  1877  in  regard  to  notice  as  to 
require  that  it  be  "  in  writing,  signed  by  the  person 
injured  or  by  some  one  in  his  behalf;"  and  added 
the  provision  for  the  giving  of  the  same  where  the 


APPENDIX  B.  221 

injured  party  died  without  having  given  it.     Acts, 
1881,  ch.  236. 

In  the  Public  Statutes  the  prior  legislation  is  re- 
enacted  with  but  slight  change  and  made  a  part 
of  chapter  52.  Thus,  the  provisions  of  the  statutes 
as  to  causing  death,  viz.  Gen.  Sts.  ch.  44,  s.  21,  and 
Acts,  1881,  ch.  199,  ss.  4,  5,  are  blended  together 
and  incorporated  in  section  seventeen.  The  provi- 
sions of  the  second  and  third  sections  of  chapter 
234  of  the  Acts  of  1877  are  re-enacted  in  sections 
eighteen  and  nineteen  respectively  ;  while  the  pro- 
visions of  chapter  259  of  the  Acts  of  1878  are  re- 
enacted  in  section  twenty,  and  the  provisions  of 
the  statuts  of  1881,  chapter  236,  are  embodied 
without  substantial  change  in  section  twenty-one. 


THE  DEVELOPMENT  OF  THE  STATUTES  IM- 
POSING LIABILITIES  UPON  COMMON  CAR- 
RIERS FOR  CAUSING  PERSONAL  INJURY  OR 
DEATH. 

THE  earliest  act  dealing  with  this  subject  is  the 
statute  of  1840,  ch.  80.  Its  provisions  simply  give 
a  remedy  by  indictment  against  the  u  proprietor 
or  proprietors  of  any  railroad,  steamboat,  stage 
coach,  or  of  common  carriers  of  passengers,"  for 
causing  the  death  of  a  person,  "  being  a  passenger." 
The  law  stood  in  this  form,  without  change,  until 
1853,  when  an  act  was  passed  embodying  the  pro- 
visions of  the  statute  of  1840,  ch.  80,  but  applying 


222  APPENDIX  B. 

them  to  railroads  alone.  Acts,  1853,  ch.  414. 
This  act,  however,  not  merely  re-enacted  those 
provisions,  but  so  extended  the  scope  of  the  original 
as  to  cover  cases  where  "  the  life  of  any  person  not 
being  a  passenger  or  employee,"  but  being  in  the 
exercise  of  due  care  and  not  upon  the  railroad  con- 
trary to  law  or  the  reasonable  rules  of  the  company, 
was  lost.  This  same  act  also  first  introduced  the 
limitation,  which  was  retained  in  all  subsequent 
legislation  upon  the  subject,  whereby  the  proceed- 
ings are  required  to  be  commenced  within  one  year 
from  the  time  of  the  injury. 

In  the  general  revision  of  the  statutes  in  1860, 
the  provisions  of  the  statute  of  1840,  ch.  80,  as 
specifically  applied  to  railroads  alone  by  statute  of 
1853,  ch.  414,  was  re-enacted  without  substantial 
change,  Gen.  Sts.  ch.  63,  s.  97 ;  while  the  pro- 
visions relating  to  persons  not  passengers  or  em- 
ployees, which  were  introduced  in  the  statute  of 
1853,  ch.  414,  were  embodied  in  a  separate  section, 
Gen.  Sts.  ch.  63,  s.  98. 

The  provisions  of  the  statute  of  1840,  ch.  80,  so 
far  as  they  related  to  the  other  carriers  named 
therein,  were  re-enacted  with  only  slight  changes 
of  phraseology.  Gen.  Sts.  ch.  160,  s.  34. 

Two  years  later  the  legislature  combined  into 
one  section  the  provisions  of  General  Statutes,  ch. 
63,  ss.  97  and  98,  and  applied  them  specifically  to 
street-railway  corporations,  the  only  change  being 
that  this  act  required  in  terms  that  the  passenger, 
as  well  as  the  person  not  being  a  passenger,  should 


APPENDIX   B.  223 

be  "  in  the  exercise  of  due  care."  Acts,  1864,  ch. 
229,  s.  37.  When  the  street-railway  laws  were 
revised  in  1871,  these  provisions  were  re-enacted, 
substantially  in  the  same  form.  Acts,  1871,  ch. 
381,  s.  49. 

In  that  same  year,  also,  the  first  act  was  passed 
giving  a  remedy  where  "  a  person  is  injured  in  his 
person  or  property  by  collision  "  at  a  grade  cross- 
ing, provided  the  corporation  neglected  to  give  the 
statutory  signals  and  such  neglect  contributed  to 
the  injury,  the  injured  party  not  being  himself 
grossly  or  wilfully  negligent,  or  acting  in  violation 
of  law,  so  as  to  contribute  to  his  own  injury.  Acts, 
1871,  ch.  352. 

When  the  revision  and  consolidation  of  the  acts 
relating  to  railroads  was  made  in  1874,  the  provi- 
sions of  General  Statutes,  ch.  63,  ss.  97  and  98,  were 
combined  and  incorporated  without  the  addition 
of  any  new  element,  in  a  single  section.  Acts, 
1874,  ch.  372,  s.  163.  The  provisions  relating  to 
injuries  received  by  collision  at  railroad  crossings, 
as  enacted  in  the  statute  of  1871,  ch.  352,  were 
re-enacted,  with  no  material  change,  in  section  164 
of  the  same  chapter. 

No  further  change  was  made  in  these  enact- 
ments until  the  statute  of  1881,  ch.  199,  was  passed. 
This  act  made  important  changes  in  the  law  as  it 
had  stood  up  to  that  time.  Section  one  gave  a 
remedy  by  action  of  tort  against  railroad  com- 
panies, to  be  brought  by  the  executor  or  adminis- 
trator of  the  deceased,  where  the  life  of  a  passenger 


224  ADPENDIX   B. 

or  of  one  not  a  passenger  or  employee  but  in  the 
exercise  of  due  care,  was  lost ;  and  section  two 
gave  the  same  remedy  where  the  life  of  a  person 
was  lost  by  collision  at  a  grade  crossing.  Section 
three  re-enacted  without  change,  save  as  to  the 
remedy  which  was  also  to  be  by  action  of  tort 
brought  by  the  executor  or  administrator,  the  pro- 
visions of  the  General  Statutes,  ch.  160,  s.  34, 
relative  to  carriers  other  than  railroads  or  street 
railways.  This  act  further  provides  that  this  new 
remedy  shall  be  taken  advantage  of  within  one 
year  from  the  date  of  the  injury,  and  that  it  shall 
not  be  availed  of  in  connection  with  the  remedy 
by  indictment.  Here  is  also  first  introduced  the 
provision  that  the  amount  of  damages  shall  be 
assessed  with  reference  to  the  degree  of  culpabil- 
ity of  the  corporation,  or  of  its  servants  or  agents. 
ss.  5,  6. 

In  the  general  revision  of  the  statutes  in  1882, 
the  provisions  of  the  statute  of  1874,  ch.  372,  s.  163, 
relative  to  railroads,  and  of  the  statute  of  1871,  ch. 
381,  ss.  49,  50,  as  to  street  railways,  were  blended 
together  and  embodied  in  the  first  portion  of  chapter 
112,  section  212,  of  the  Public  Statutes,  while  sec- 
tions one,  five,  and  six  of  chapter  199  of  the  Acts 
of  1881  were  combined  and  enacted  in  the  latter 
part  of  the  same  section.  The  following  section 
is  a  re-enactment  of  the  provisions  of  the  statute 
of  1874,  ch.  372,  s.  164,  as  amended  by  the  statute 
of  1881,  ch.  199,  s.  2.  Pub.  Sts.  ch.  112,  s.  213. 
Section  three  of  chapter  199  of  the  Acts  of  1881, 


APPENDIX   B.  225 

relating  to  carriers  other  than  railroads  and  street 
railways,  is  re-enacted  in  Public  Statutes,  ch.  73, 
s.  6. 

Throughout  the  series  of  statutes  that  culminates 
in  Public  Statutes,  ch.  112,  s.  212,  and  ch.  73,  s.  6, 
the  remedy,  whether  by  indictment  or  by  action  of 
tort,  is  given  when  the  life  is  lost  by  the  negligence 
of  the  corporation  or  by  the  gross  negligence  of  its 
servants  or  agents.  The  limits  of  the  amount  that 
may  be  recovered,  and  the  manner  in  which  such 
amount  is  to  be  distributed,  also  remains  unchanged 
throughout. 


15 


INDEX 


KEFEKENCES   ARE   TO    SECTIONS. 


A. 
ACCIDENT, 

as  a  concurrent  cause  of  an  injury  on  the  highway,  17. 
cause  of.     (See  CAUSE.) 
ADMINISTRATION, 

under  Public  Statutes,  ch.  112,  a.  212,  must  appear  to 

have  been  taken  out  in  this  State,  97. 
ADMISSIONS, 

by  the  town,  that  the  highway  was  defective,  65. 
statements  of  surveyor  of  highways  not,  by  the  town, 

65,  n.  2. 

statements  of  a  selectman  not,  65,  n.  2. 
AGENTS.     (See  SERVANTS  OR  AGENTS.) 
AGREEMENT, 

towns  canuot  broaden  their  liability  by,  2. 
ALLEYS.     (See  PUBLIC  ALLEYS.) 
ASSUMPTION   OF   RISK, 
under  Acts,  1883,  ch.  243, 

the  doctrine  of,  affords  a  good  defence,  101. 
under  Acts,  1887,  ch.  270, 

the  doctrine  of,  as  to  defects  in  ways,  works,  or 

machinery,  122. 

exceptions  to  the  application  of  same,  123. 
of  the  negligence  of  a  superintendent,  125. 
of  the  negligence  of  a  person  in  "  charge  or  con- 
trol," 125. 


228  INDEX. 

[References  are  to  sections.] 

ATTACK, 

acts  of  dog  must  constitute  a  direct,  76. 
or  a  demonstration  of,  76. 
AUTHORITY, 

appliances  must  be  used  with  the  employer's,  143,  144. 

B. 
BAR, 

judgment  for  conscious  suffering  under  Acts,  1887,  not  a, 

to  action  for  death  under  Acts,  1883,  84,  n.  2,  101,  n. 

judgment  under  Acts,  1887,  ch.  270,  is  as  to  action  at 

common  law,  116. 
BARRIERS, 

erected  to  close  a  highway,  28. 
erected  to  guard  an  excavation,  28. 
must  be  suitable  and  sufficient  for  the  purpose,  28,  29. 
cannot  be  erected  to  change  the  line  of  travel,  28,  n. 
the  subsequent  removal  of,  by  other  persons,  28. 
BENEFICIARY, 

under  Public  Statutes,  ch.  112,  s.  212, 
one  must  appear  to  exist,  98. 

that  one  does  exist  should  be  set  out  in  the  plead- 
ings, 98. 
the  name  of  the,  need  not  be  alleged,  98. 

C. 

CARE.     (See  DUE  CARE.) 
CARS, 

foreign,  as  a  part  of  the  employers'  ways  or  works,  145. 
the  number  of,  that  constitute  a  train,  170. 
electric,  do  not  constitute  locomotive  engine  or  train,  171. 
CAUSE   OF   THE   ACCIDENT, 
under  Public  Statutes,  ch.  52, 

the  defect  in  the  highway  must  be  the  proximate,  16. 

also  the  sole,  17. 

statement  of  the,  in  the  notice,  52. 


INDEX.  225 

[References  are  to  sections.] 

CAUSE  OF   THE   ACCIDENT,  —  Continued. 
under  Public  Statutes,  ch.  52,  —  continued. 

effect  of  variance  between  statement  and  proof  of, 

52,  n. 
nnder  Public  Statutes,  ch.  102,  s.  93, 

the  acts  of  the  dog  must  be  the  sole  proximate,  71. 
•under  Acts,  1887,  ch.  270, 

defect  in  ways,  etc.,  or  negligence  of  persons  men- 
tioned in  clauses  2  or  3  must  be,  127. 
the  negligence  of  the  superintendent  need  not  be  tbe 

sole,  155. 

statement  of  the,  in  the  notice,  191. 
CAUSE   OF   THE   DEFECT, 

what  is  the,  in  the  highway,  not  material,  19. 

evidence   of  causes   that  may  produce   defects   in   the 

future,  as  tending  to  show  notice  of  the  defect,  46. 
CHARGE   OR   CONTROL, 

clause  3  applies  only  to  negligence  in  the,  of  a  switch, 

etc.,  when  same  is  completed,  164,  169. 
who  may  have  the,  165. 

assumption  of  risk  of  the  negligence  of  a  person  in,  125. 
meaning  of  the  phrase,  166. 
effect  when  applied  to  a  train,  166. 
the  legislative  definition  of  a  person  in,  166. 
the  entire,  of  a  train,  need  not  be  vested  in  one  person, 

167. 
the  person  in,  of  a  train,  need  not  be  upon  it,  168. 

CITY   ORDINANCE, 

the  effect  of  a  violation  of,  when  injured  on  the  high- 
way, 8. 
CLOSING   THE   HIGHWAY, 

erecting  barriers  for  the  purpose  of,  28. 
COAL-HOLE, 

a  loose  cover  of,  as  a  defect  in  the  highway,  46,  n. 
the  liability  of  the  abutter  where  an  injury  is  due  to  a 
defective,  36,  n. 


230  INDEX. 

[References  are  to  sections.] 

COLLISION   AT   GRADE   CROSSINGS, 
under  Public  Statutes,  ch.  112,  s.  212, 

actions  based  upon  a,  may  be  maintained  by  show- 
ing any  negligent  act,  86,  102. 
actions  based  upon  a,  lie  under  this  section  only 

where  death  results,  102. 
the  plaintiff  must  show  that  deceased  was  in  the 

exercise  of  due  care,  102. 
under  Public  Statutes,  ch.  112,  s.  213, 

actions  based  upon   a,  under  this  section  can  be 
maintained  only  by  showing  an  omission  of  the 
required  signals,  102. 
plaintiff  need  not  show  that  deceased  was  in   the 

exercise  of  due  care,  102. 
what  must  be  alleged  in  actions  for  injury  or  death 

by,  103. 
plaintiff  must  show  that  omission  of  the  signals 

contributed  to  the,  107. 
COMMON  EMPLOYMENT, 
under  Acts,  1883,  ch.  243, 

the  doctrine  of,  affords  a  good  defence,  101. 
under  Acts,  1887,  ch.  270, 

the  doctrine  of,  abolished,  118. 
but  only  in  the  cases  that  come  within  the  act,  118. 
COMMON  LAW, 

towns  not  liable  at,  for  defects  in  highways,  1. 
the  liability  of  employers  at,  not  affected  by  act  of  1887, 
115,  116. 

CONDITION  PRECEDENT, 

showing  that  the  town  might  have  remedied  the  defect, 

a,  37. 
showing  that  the  town  had,  or  might  have  had,  notice 

of  the  defect,  a,  43. 
the  giving  of  notice  of  the  time,  etc.,  of  the  accident,  a, 

47,  187. 
section  5  of  acts  of  1887  does  not  create  a,  200. 


INDEX.  231 

[References  are  to  sections.] 

"CONNECTED  WITH  OR  USED  IN  THE  BUSINESS 

OF   THE  EMPLOYER," 
what  must  be  shown  under  this  provision,  143. 
general  application  of  the  rule  under  the  provision,  144.. 
application  of  rule  to  foreign  cars,  145. 

CONSCIOUS   SUFFERING, 

under  Public  Statutes,  ch.  112,  ss.  212,  213, 

action  may  be  maintained  for  death  preceded  by,  84. 
but  no  damages  can  be  recovered  for,  102,  n. 
under  Acts,  1887,  ch.  270, 

death  that  is  preceded  by,  175. 

the  amendment  of  1892  does  not  limit  the  right  to 

sue  for,  175. 
who  is  entitled  to  the  damages  recovered  in  a  suit 

for  death  preceded  by,  175. 

who  is  entitled  to  sue  where  death  is  without,  177. 
who  is  entitled  to  damages  recovered  for  death  with- 
out, 177. 
upon  whom  burden  of  proving  death  without,  rests, 

179. 

what  constitutes  death  without,  180. 
CONSTRUCTION, 

of  the  Highway  Act,  3. 

of  the  Employer's  Liability  Act,  114. 

CONTRACTOR.     (See  INDEPENDENT  CONTRACTOR.) 
CONTRIBUTORY  NEGLIGENCE.     (See  DUE  CARE.) 
CONTROL   OF   HORSE, 

plaintiff  cannot  recover  if  he  had  lost,  when  injured, 
10. 

unless  loss  of,  was  only  momentary,  10. 

CONVERSATIONS, 

evidence  of,  to  supply  deficiencies  in  notice  of  accident, 

not  admissible,  49,  n.  5,  56. 
but  competent  to  show  that  town  was  not  misled  by 

notice  given,  54,  n.  3. 


232  INDEX. 

[References  are  to  sections.] 

COUNTS  OF  DECLARATION, 

under  Acts,  1887,  ch.  270, 

plaintiff  may  join  counts  at  common  law  and  counts 

under  the  act,  116. 
may  be  required  to  elect  on  which  he  will  stand 

116. 
no  exception  will  be  sustained  when  required  to  so 

elect,  116. 
plaintiff  may  also  join   counts  based  on  different 

clauses  of  section  1,  117. 

cannot  be  required  to  elect  between  them,  117. 
CROSSING.     (See  GRADE  CROSSINGS.) 

D. 

DAMAGES, 

under  Public  Statutes,  ch.  102,  s.  93, 
for  what  may  be  recovered,  79. 
for  medical  attendance  and  care  of  minor,  79,  n.  3. 
the  elements  of,  80. 

the  practice  with  respect  to  doubling  the,  81. 
under  Acts,  1887,  ch.  270, 

amount  of,  recovered  for  conscious  suffering,  a  part 

of  estate  of  deceased,  175. 
amount  of,  recovered  for  the  death  in  such  case  not 

a  part  of  his  estate,  175. 
amount  of,  recovered  for  instantaneous  death  not  a 

part  of  his  estate,  177. 
section  3  fixes  the  limits  of  the,  186. 
DEATH, 

under  Public  Statutes,  ch.  52, 
action  for,  independent,  4. 

the  giving  of  notice  of  the  accident  in  case  of,  60. 
under  Public  Statutes,  ch.  112,  s.  212, 

liability  for  causing,  purely  statutory,  82. 
liability  same  whether  death  instantaneous  or  not, 
84.  ' 


INDEX.  233 

[References  are  to  sections.] 
DEATH,  —  Continued. 

under  Acts,  1887,  ch.  270, 

action  for  the,  survives,  127. 

section  1  does  not  make,  a  substantive   cause  of 

action,  173. 

the  act  recognizes  two  kinds  of,  175. 
that  which  is  not  instantaneous,  175. 
the  limitation  of  the  right  of  action  for  that  kind 

of,  175. 
who  is  entitled  to  the  damages  recovered  for  that 

kind  of,  175. 
amendment  of  1892  makes,  a  substantive  cause  of 

action,  176. 

death  that  is  instantaneous,  177. 
object  of  making  that  kind  of,  a  cause  of  action, 

177. 

who  may  sue  in  case  of  instantaneous,  127,  177. 
who  is  entitled  to  the  damages  recovered,  177. 
upon  whom  burden  of  showing  instant,  rests,  179. 
what  constitutes,  without  conscious  suffering,  180. 
limits  of  the  amount  recoverable  for,  186. 

DECLARATION.     (See  COUNTS  OF  DECLARATION.) 

DEDICATION, 

highways  established  by,  34. 
DEFECT, 

in  the  highway, 

within  the  location  of  a  railroad,  2,  41. 

mode  of  coming  upon  the,  immaterial,  13. 

must  be  the  proximate  cause  of  the  injury,  16. 

also  the  sole  cause  of  the  injury,  17. 

origin  of  the,  not  material,  17. 

what  constitutes  a,  18. 

need  not  endanger  all  modes  of  travel,  18. 

that  it  is  concealed  may  not  be  material,  18. 

the  cause  of  the,  19. 

must  be  in  the  travelled  part,  20. 


234  INDEX 

[References  are  to  sections.] 
DEFECT,  —  Continued. 

in  the  highway,  —  continued. 
exceptions  to  that  rule,  20. 
snow  and  ice  as  a,  21. 
an  illegal  use  of  the  highway  as  a,  22. 
a  failure  to  light  the  highway  not  a,  23. 
insecure  projections  as  a,  24. 
objects  that  cause  horses  to  take  fright  as  a,  25. 
in  the  ways,  works,  or  machinery, 

relation  of  the,  to  the  injury,  131. 
what  are  defects  in,  within  clause  1,  132. 
temporary,  not  within  clause  1,  132. 
where  employee  fails  to  use  safe  appliances,  no,  136. 
DELEGATION, 

the  duty  to  repair  the  highway  not  avoided  by,  42. 
DEPENDENCE, 

the  burden  is  upon  the  next  of  kin  to  prove,  183. 
evidence  showing  the  mere  fact  of,  sufficient,  183,  184. 
what  constitutes,  184. 
DISCONTINUANCE  OF  HIGHWAY, 

effect  of,  42,  n.  1. 
DISCOVERED  OR  REMEDIED, 

it  must  appear  that  the  defect  was  capable  of  being,  147. 
meaning  of  the  word  "  remedied,"  148. 
DOGS, 

the  liability  for  injuries  by,  69-81. 

what  acts  of,  may  serve  as  the  basis  of  an  action,  76. 

the  intent  of  the  dog  in  doing  the  act  not  material,  77. 

the  character  of  the  dog  not  material,  when,  78. 

and  when  material,  78. 

where  the  injury  is  done  by  two,  together,  80,  n. 

DUE  CARE, 

under  Public  Statutes,  ch.  52, 

burden  rests  on  plaintiff  to  show,  5. 

the  standard,  5. 

as  to  manner  of  travelling  and  equipment,  5. 


INDEX.  235 

[References  are  to  sections.] 
DUE    CARE,  —  Continued. 

under  Public  Statutes,  ch.  52,  —  continued. 
the  standard  applied  to  infants,  5. 
when  may  be  inferred,  5. 
the  effect  of  intoxication,  6. 
the  effect  of  defective  eyesight,  6. 
effect  of  knowledge  of  the  existence  of  the  defect, 

7    Q 

/,  y. 

effect  of  violation  of  law  or  city  ordinance,  8. 
under  Public  Statutes,  ch.  102,  s.  93, 

extent  of  application  of  the  doctrine  of,  72. 

not  the  same  degree  of  care  exacted  from  a  child, 

72. 

degree   of  care  exercised  by  child's   mother   im- 
portant, 72. 
under  Public  Statutes,  ch.  112,  s.  212, 

of  a  passenger  need  not  be  shown,  94. 
of  one  not  a  passenger  must  be  shown,  95. 
under  Public  Statutes,  ch.  112,  s.  213, 
plaintiff  need  not  show,  102. 
gross  negligence  a  defence  only,  108. 
under  Acts,  1886,  ch.  140, 

of  a  passenger  need  not  be  shown,  111. 
of  one  not  a  passenger  must  be  shown,  111. 
under  Acts,  1887,  ch.  270, 

the  common  law  doctrine  of,  retained,  128. 

also  common  law  rule  as  to  burden  of  establishing, 

128. 

some  principles  of  the  law  of,  that  have  been  ap- 
plied, 129. 
the  doctrine  of,  applies  also   where  employee   is 

killed,  178. 

how  due  care  of  deceased  may  be  shown,  178. 
DUTY, 

to  repair  the  highway, 
source  of  the,  1. 
the  means  for  enforcing  the  performance  of  the,  1. 


236  INDEX. 

[References  are  to  sections.] 

DUTY,  —  Continued. 

to  repair  the  highway, — continued. 

is  the  measure  of  the  liability  for  defects,  2. 

extent  of  the,  40. 

not  affected  by  the  location  of  other  roads  within 
the  highway,  2,  41. 

the  limits  of  that  rule,  41. 

not  avoided  by  delegation,  42. 
of  employers, 

not  to  supply  latest  and  best  machinery,  134. 

to  furnish  and  maintain  safe  appliances,  149. 

limits  to  the  extent  of  that  duty,  149. 

relative  to  inspection,  150. 

to  give  instruction,  150,  n. 

general  limits  to,  162. 

not  bound  to  inspect  exploders,  162. 

not  bound  to  warn  of  momentary,  passing  risks,  162. 
of  railroads,  toward  trespassers,  99, 1 13. 


E. 
ELECTRIC  CAR, 

not  a  locomotive  engine  or  train  upon  a  railroad,  171. 
ELECTRIC  LIGHT  COMPANIES, 

construction  of  act  imposing  liability  upon,  202. 

not  liable  for  personal  injuries  under  Acts,  1883,  ch. 

221,  201,  n. 
EMPLOYEE, 

under  Acts,  1883,  ch.  243, 

rights  of,  101. 
under  Acts,  1887,  ch.  270, 

waiver  by,  of  rights  given,  121. 
position  of,  when  suing,  174. 

EMPLOYERS'   LIABILITY   ACT, 
construction  of,  114. 
general  effect  of,  115. 


INDEX.  237 

[References  are  to  sections.] 

EMPLOYERS'   LIABILITY   ACT,  —  Continued. 

judgment  in  action  under,  bars  action  at  common  law, 
116. 

destructive  operation  of,  118. 

creative  operation  of,  119. 

application  of,  to  municipal  corporations,  120. 

s.  1,  cl.  1,  of,  enlarges  liability  of  employers,  130,  151. 

s.  1,  cl.  2,  of,  also  enlarges  liability  of  employers,  153. 

general  effect  of  s.  1,  cl.  3,  of,  163. 

the  scope  of  s.  1,  cl.  3,  of,  164. 

the  effect  of  the  amendment  of  1892,  176. 

the  subject  matter  and  object  of  s.  2  of,  177,  185. 

the  subject  matter  of  s.  3  of,  186. 

the  effect  of  s.  4  of,  198. 

s.  5  of,  creates,  not  a  condition,  but  a  defence,  200. 
EMPLOYMENT, 

meaning  of  phrase,  "  in  the,  of  such  corporation,"  96. 

who  comes  within  the  phrase,  96. 

"ENTRUSTED   WITH  AND  EXERCISING    SUPER- 
INTENDENCE," 

the  foreman  must  be  intrusted  with  superintendence, 
157. 

must  act  within  the  scope  of  that  superintendence,  157. 

must  be  exercising  superintendence,  158. 
ESTOPPEL, 

accident  at  crossing  established  by,  104,  n. 
EVIDENCE, 

of  ability  of  the  town  to  remedy  defects,  38. 

of  constructive  notice  of  defects,  46. 

of  conversations  as  to  the  time,  place,  etc.,  of  the  acci- 
dent, 49,  n.  5,  54,  n.  3,  56. 

of  the  acts  of  other  persons,  as  tending  to  show  a  defect, 
62. 

of  the  existence  of  similar  defects  in  other  places,  63. 

of  the  state  of  the  highway  at  other  times,  64. 

of  the  habitual  condition  of  the  place  of  the  accident, 
64,  n.  3. 


238  INDEX. 

[References  are  to  section*.] 

EVIDENCE,  —  Continued. 

of  admissions  of  the  existence  of  a  defect,  65. 

of  similar  conditions,  to  show  that  defect  might  have 
been  remedied,  66. 

of  the  expense  of  repairing  the  highways,  67. 

of  the  notoriety  of  the  defect,  to  show  notice,  68. 

of  expert  as  to  existence  of  defect  in  highway,  not  com- 
petent, 65,  n.  2. 

of  omission  to  give  the  statutory  signals,  106. 

of  a  habit  of  giving  or  omitting  them,  106. 

to  show  that  the  omission  of  them  contributed  to  the 

injury,  107. 
EXCAVATIONS  IN   THE   HIGHWAY, 

the  erection  of  barriers  to  guard,  28. 
EXPERT   TESTIMONY, 

as  to  the  existence  of  a  defect  in  the  highway,  not  com- 
petent, 65,  n.  2. 
EXPLODERS, 

employer  not  liable  for  failure  of  superintendent  to  in- 
spect, 162. 
EXPLOSIVES, 

as  a  part  of  the  employer's  ways  or  works,  141. 
EXTRANEOUS    SUBSTANCES, 

as  defects  in  ways,  works,  or  machinery,  133. 
EYESIGHT, 

effect  of  defective,  under  Public  Statutes,  ch.  52,  6. 

F. 
FARE, 

how  far  payment  of,  essential  to  relation  of  passenger, 

91. 

the  payment  of,  may  be  in  services  rendered,  91. 
FEDERAL   COURTS, 

no  action  can  be  maintained  in,  under  Public  Statutes, 

ch.  112,  s.  212,  83,  n.  4. 
actions  in,  under  Acts,  1887,  ch.  270,  126. 


INDEX.  239 

[References  are  to  sections.] 

FOOTWAYS, 

liability  as  to,  by  prescription  in  Boston,  33,  n.  1. 

liability  as  to,  across  a  common,  36,  n.  2. 

by  the  side  of  a  country  road,  36,  11.  2. 

established  by  dedication,  34,  n.  1. 

town  not  liable  if  used  for  other  purposes,  34,  n.  1. 

G. 
GAS   COMPANIES, 

construction  of  the  act  imposing  liability  upon,  202. 
GENERAL   DENIAL, 

evidence  of  a  violation  of  law  admissible  under,  8. 
GRADE   CROSSINGS, 

under  Public  Statutes,  ch.  112,  s.  212, 

the  liability  for  accidents  at,  86,  102. 

what  precautions  are  required  at,  86. 
under  Public  Statutes,  ch.  112,  s.  213, 

the  liability  for  accidents  at,  102. 

what  must  be  alleged  in  the  declaration,  103. 

what  kind  of,  come  within  the  statute,  104. 
GROSS  NEGLIGENCE, 

under  Public  Statutes,  ch.  112,  ss.  212,  213, 

of  servants,  distinct  from  negligence  of  railroad, 
85. 

on  part  of  its  servants  must  be  alleged,  87. 

and  proved,  87. 

of  a  person  killed  at  grade  crossing  a  defence,  108. 

meaning  of  phrase,  108. 
under  Acts,  1886,  ch.  140, 

of  servants,  distinct  from  negligence  of  railway,  111. 

on  part  of  servants  must  be  alleged  and  proved,  111. 

H. 
HABIT   OF   DOG, 

value  of  evidence  of,  78. 


240  INDEX. 

[References  are  to  sections.] 

HIGHWAY, 

the  liability  of  towns  for  defects  in,  1-61. 

to  be  used  for  purpose  of  travel,  11. 

for  what  purposes  may  not  be  used,  11. 

motive  for  using  for  travel  immaterial,  12. 

an  illegal  use  of,  not  a  defect  in,  22. 

the  modes  of  establishing,  31. 

the  plaintiff  must  show  the  way  where  the  accident  hap- 
pened to  be,  31. 

established  by  statute  mode,  32. 

established  by  prescription,  33. 

established  by  dedication,  34. 

effect  of  evidence  of  repairs  made  in,  within  six  years, 
35. 

distinction  between,  and  town  way,  30,  n.  5. 
HORSE, 

plaintiff  cannot  recover  if  he  had  lost  control  of  his,  10. 

unless  loss  of  control  of,  was  only  momentary,  10. 

objects  that  frighten  plaintiff's,  as  defects  in  the  way,  25. 
HUSBAND  AND  WIFE, 

under  Public  Statutes,  ch.  52, 

no  action  lies  for  loss  of  services  of  wife,  3. 
signing  of  the  notice  of  the  accident  by  husband,  57. 

I. 

ICE, 

constitutes  a  defect  in  the  highway,  when,  21. 

when  not  a  defect  in  the  highway,  21. 

recent  legislation  as  to,  and  its  effect,  21. 
ILLEGAL  USE, 

of  the  highway,  not  a  defect  therein,  22. 
IMPLICATION, 

liability  of  towns  cannot  be  narrowed  by,  2. 
INACCURACY   OF   NOTICE   OF   THE   ACCIDENT, 

effect  of,  where  no  intention  to  mislead,  54. 

could  not  be  waived  by  town  prior  to  1894,  49,  n.  5. 


INDEX.  241 

[References  are  to  sections.] 

k  INACCURACY  OF  NOTICE   OF  THE  ACCIDENT,— 

Continued. 

"  inaccuracy "    covers   insufficiency   as  well   as   actual 

mistake, 
INCAPACITY  TO  GIVE  NOTICE  OF  THE  ACCIDENT, 

burden  rests  upon  plaintiff  to  show,  59. 

what  must  be  shown  to  sustain  this  burden,  59. 

is  a  question  of  fact  for  the  jury,  59. 
INDEPENDENT   CONTRACTOR, 

common  law  liability  of  employers  to  employees  of,  198. 

effect  of  Employers'  Liability  Act  upon  this  liability,  198. 

the,  may  be  the  "  person  entrusted,"  199. 
INFANT, 

the  degree  of  care  exacted  from,  5,  72. 

the  degree  of  care  exercised  by  mother  of,  important,  72. 

action  for  loss  of  services,  etc.,  lies  where  injured  by  a 
dog,  79,  n.  3. 

an  unborn,  as  a  "  person,"  14. 
INNOCENT   INTERVENING   ACTS, 

effect  of,  as  concurrent  causes,  17. 

what  acts  may  be,  17. 
INSPECTION, 

the  employer's  duty  relative  to,  150. 

employer  responsible  for  acts  of  employee  charged  with 

duty  of,  150. 
INSTANTANEOUS   DEATH.     (See  DEATH.) 

the  giving  of  notice  of  the  accident  in  cases  of,  195. 
"IN   THE   CONDITION," 

meaning  of  the  phrase,  139. 
INTOXICATION, 

effect  of,  in  case  of  injury  on  the  highway,  6. 


J. 

JOINDER   OF  COUNTS.     (See  COUNTS  OF  DECLARA- 
TION.) 

16 


242  INDEX. 

[References  are  to  sections.] 

K. 

KEEPER  OF  A  DOG.     (See  OWNER  OR  KEEPER.) 

what  constitutes  a,  75. 
temporary  harboring  not  enough,  75. 
whether  or  not  defendant  a,  is  a  question  for  the  jury,  75. 
KNOWLEDGE, 

of  existence  of  defect  in  highway,  effect  of,  7,  9. 

L. 

LADDERS, 

as  a  part  of  the  employer's  ways  or  works,  142,  144. 
LIABILITY, 

of  towns  for  defects  in  highways,  1-61. 

of  owners  or  keepers  of  dogs,  69-81. 

of  steam  railroads,  82-108. 

of  the  proprietors  of  steamboats,  etc.,  109. 

of  street  railways,  110-113. 

of  employers,  114-200. 
LIABILITY  OVER, 

in  case  of  injuries  received  on  the  highway,  19,  n. 

in  case  of  injuries  received  by  defect  in  employer's  ways, 

etc.,  200,  n. 
LICENSEE, 

no  recovery  for  death  of,  under  Public  Statutes,  ch.  112, 

s.  212,  99. 
LIGHT, 

failure  to,  highway  not  a  defect  therein,  23. 
LOCOMOTIVE  ENGINE.     (See  SIGNAL,  SWITCH,  LOCO- 
MOTIVE ENGINE,  OR  TRAIN.) 

must  be  upon  a  railroad  at  time  of  the  accident,  172. 

an  electric  car  not  a,  171. 
LOCUS  OF  INJURY, 

under  Public  "Statutes,  ch.  102,  s.  93, 

no  recovery  if  plaintiff  injured  outside  the  State, 
when,  73. 


INDEX.  243 

[References  are  to  sections.] 

LOCUS   OF   INJURY,  —  Continued. 

under  Public  Statutes,  ch.  112,  s.  212, 

need  not  be  tracks  owned  by  defendant,  89. 

LOSS  OF  SERVICES, 

husband  cannot  maintain  action  for,  of  wife  injured  on 

highway,  3. 
father  can  maintain  action  for,  of  infant  injured  by  a 

dog,  79,  n.  3. 

M. 

MACHINERY.     (See  WAYS,  WORKS,  OR  MACHINERY.) 

employer  not  bound  to  furnish  latest  and  best,  134. 
MASTER  AND  SERVANT, 
effect  of  the  relation, 

under  Public  Statutes,  ch.  52,  14. 
under  Acts,  1883,  ch.  243,  101. 
under  Acts,  1887,  ch.  270,  118,  122,  125,  174. 
METROPOLITAN  PARK  COMMISSION, 

liability  for  defects  in  ways  under  the  control  of, 

3G,  n.  2. 
MISLEAD, 

effect  of  inaccuracy  of  notice  where  no  intention  to,  54. 
MOMENTARY  DANGERS.   (See  TEMPORARY  DEFECTS.) 

MUNICIPAL  CORPORATIONS, 

liability  of,  for  defects  in  highways,  1-61. 
liability  of,  under  Acts,  1887,  ch.  270,  120. 

N. 
NEGLIGENCE, 

under  Public  Statutes,  ch.  112,  s.  212, 

of  the  corporation  and  of  its  servants  distinct,  85. 
effect  of  the  distinction  upon  pleadings  and  proof, 

85. 

of  the  corporation,  86. 
of  the  corporation  at  grade  crossings,  86. 


244  INDEX. 

[References  are  to  sections.] 

NEGLIGENCE,  —  Continued. 

under  Public  Statutes,  ch.  112,  s.  212,  —  continued. 

of  its  servants  must  be  alleged  and  proved  to  be 

gross,  87. 

of  a  passenger  affords  no  defence,  94. 
of  one  not  a  passenger  affords  a  defence,  95. 
evidence  of,  on  part  of  corporation  must  be  shown, 

100. 
under  Public  Statutes,  ch.  112,  s.  213, 

mere,  of  person  killed  affords  no  defence,  102. 
plaintiff  must  show  that,  as  to  signals  contributed 

to  the  injury,  107. 

evidence  competent  on  that  issue,  107. 
gross,  of  person  killed  affords  a  defence,  108. 
under  Acts,  1886,  ch.  140, 

of  the  corporation  and  of  its  servants  distinct,  111. 
effect  of  distinction  upon  pleadings  and  proof,  111. 
under  Acts,  1887,  ch.  270, 

of  the  employer  and  his  employees  distinct,  181. 
effect  of  that  distinction,  181. 
NEXT  OF  KIN, 

right  of,  to  amount  recovered  where  employee  not  in- 
stantly killed,  175. 
right  of,  to  maintain  action  where  he  is  instantly  killed, 

177,  182. 
right  of,  to  amount  recovered   where   he  is   instantly 

killed,  177. 
must  show  that  deceased  was  in  exercise  of  due  care, 

178. 

how  that  burden  may  be  sustained,  178. 
must  show  that  deceased  was  instantly  killed,  179. 
or  that  he  died  without  conscious  suffering,  179. 
the  fact  may  be  inferred  from  all  the  evidence,  179. 
any  one  of  the,  who  is  dependent  can  bring  the 

suit,  182. 

must  show  that  he  or  she  was  dependent,  183. 
whether  or  not  dependent  a  question  of  fact,  184. 


INDEX.  245 

[References  are  to  sections.] 

NOTICE, 

of  the  existence  of  the  defect  in  the  highway, 

plaintiff  must  show  that  town  had,  or  might  have 
had,  43. 

who  must  be  shown  to  have,  44. 

what  is  actual,  45. 

notice  of  a  cause  that  may  produce  a  defect,  not, 
45,  n. 

constructive,  46. 

evidence  tending  to  show  constructive,  46,  68. 

evidence  of  causes  that  may  produce  defects,  effect 

of,  4(5. 
of  the  time,  etc.,  of  an  accident  in  the  highway, 

object  of  requiring  the  giving  of,  47. 

effect  of  requiring  the  giving  of,  47. 

only  required  in  cases  under  the  statute,  48. 

what  is  a  sufficient,  49. 

the  sufficiency  of,  is  a  question  of  law,  49. 

insufficiency  of,  could  not  be  waived  prior  to  1894, 
49,  n.  5. 

insufficiency  of,  where  no  intention  to  mislead,  54. 

the  statement  of  the  time  of  the  accident,  50. 

the  statement  of  the  place  of  the  accident,  51. 

the  statement  of  the  cause  of  the  accident,  52. 

must  be  wholly  in  writing,  56. 

by  whom,  may  be  signed,  57. 

the  service  of,  by  whom  made,  58. 

the  service  of,  upon  whom  made,  58. 

incapacity  to  give,  the  burden  of  showing,  59. 

incapacity  to  give,  what  constitutes,  59. 

the  giving  of,  in  case  of  death,  60. 
of  the  time,  etc.,  of  the  accident  to  an  employee, 

in  what  cases  required,  187,  196. 

the  requirement  of,  creates  a  strict  condition  pre- 
cedent, 187. 

the  object  of  requiring  the  giving,  188. 

the  construction  of,  188. 


246  INDEX. 

[References  are  to  sections.] 
NOTICE,  —  Continued. 

of  the  time,  etc.,  of  the    accident   to  an   employee, — 
continued. 

the  sufficiency  of,  is  a  question  of  law,  188. 

the  statement  of  the  time  of  the  accident,  189. 

the  statement  of  the  place  of  the  accident,  190. 

the  statement  of  the  cause  of  the  accident,  191. 

the  kind  of  negligence  need  not  be  stated,  191. 

more  than  one  cause  may  be  stated,  191. 

notices  that  have  been  held  sufficient,  190,  n. 

the  service  of,  192. 

the  signing  of,  by  the  attorney,  194. 

the  giving  of,  where  death  is  instantaneous,  195. 

•when  insufficiency  of,  immaterial,  197. 

the  allegation  of,  in  the  declaration,  193. 

o. 

ORDINANCE, 

effect  of  violation  of  city,  when  injured  on  highway,  8. 
OWNER  OR  KEEPER, 

the  liability  of,  of  a  dog,  several  only,  74. 

but  phrase  affords  two  grounds  of  liability,  74. 

what  constitutes  a  keeper  of  a  dog,  75. 

temporary  harboring  of  dog  not  enough,  75. 

whether  defendant  a  keeper  is  question  for  the  jury,  75. 

words  are  descriptive  averments,  and  must  be  strictly 

proved,  74,  n.  2. 

P. 

PARTIALLY   COMPLETED   STRUCTURES, 

as  part  of  the  employer's  ways  or  works,  142. 
PASS, 

effect  of  travelling  upon,  which  releases  the  railroad,  83. 
employee  travelling  upon,  when  in  "  employment  of  such 
corporation,"  96. 


INDEX.  247 

[References  are  to  sections.] 

PASSENGER, 

under  Public  Statutes,  ch.  112,  s.  212, 

•when  the  relation  arises,  90. 

from  what  circumstances  relation  inferred,  90. 

the  circumstance  of  place,  90. 

the  circumstance  of  manner,  90. 

the  circumstance  of  time,  90,  u. 

the  payment  of  fare,  how  far  essential,  91. 

termination  of  the  relation  by  his  own  acts,  92. 

leaving  the  train  while  in  motion,  92. 

leaving  the  train  before  the  station  is  reached,  92. 

termination  of  the  relation  in  the  usual  course,  93. 

plaintiff  need  not  show  the  due  care  of,  94. 

the  negligence  of,  affords  no  defence,  94. 
under  Acts,  1886,  ch.  140, 

plaintiff  need  not  show  due  care  of,  111. 

meaning  of  the  word,  more  limited,  112. 
PASSING   RISKS.     (See  TEMPORARY  DEFECTS.) 

PATHS, 

necessarily  used,  as  a  part  of  employer's  ways,  140. 

PENAL   LEGISLATION, 

the  statute  imposing  liability  upon  towns  as,  3. 

the  liability  of  owners  or  keepers  of  dogs,  not,  69. 

the  liability  of  railroads  for  causing  death,  essentially, 

83. 

PERSON, 

who  is,  under  Public  Statutes,  ch.  52,  14. 
why  the  word  is  used  in  that  statute,  39. 
meaning  of  the  word  in  Public  Statutes,  ch.  102,  s.  93, 
79. 

PERSON  IN  CHARGE  OR  CONTROL, 
assumption  of  risk  of  negligence  of,  125. 
who  may  be,  165. 

what  is  meant  by  the  phrase,  166,  n. 
the  legislative  definition  of,  166. 


248  INDEX. 

[References  are  to  sections.] 

PERSON   INTRUSTED, 

with  duty  of  looking  out  for  defects  in  ways,  etc.,  152. 

the  requirements  of,  152. 
PLACE.     (See  Locus  OF  INJURY.) 

statement  of  the,  of  the  accident  in  notice,  51,  190. 

PLAYING, 

upon  the  highway  when  injured,  effect  of,  11. 

PLEADING, 

when  defect  relied  on  is  a  want  of  railing,  30. 

variance  between  cause  of  accident  as  stated  in  notice 

and  as  proved  at  trial,  52,  n.  4. 
variance  between  declaration  and  proof  as  to  character 

of  defect  in  employer's  ways,  etc.,  138. 
(See  COUNTS  OF  DECLARATION  ) 

POSITION, 

of  employee  suing  under  Acts,  1887,  ch.  270,  174. 

PREMISES, 

of  third  persons,  as  part  of  employer's  ways  or  works,  144. 

PRESCRIPTION, 

highways  established  by,  33. 
the  time  of,  33,  n.  2. 

PRINCIPAL  DUTY.     (See  SOLE  OR  PRINCIPAL  DUTY.) 

PRIVATE   SIDEWALKS, 

the  liability  for  defects  in,  36,  n. 

PRIVATE  WAYS, 

the  liability  of  towns  for  defects  in,  36. 

PROCEDURE, 

provisions  as  to,  in  Acts,  1887,  do  not  apply  to  common 
law  actions,  116. 

PROJECTIONS, 

over  highway,  how  far  defects  therein,  24. 

PUBLIC   ALLEYS, 

liability  for  defects  in,  in  Boston,  36,  n. 


INDEX.  249 

^References  are  to  sections.] 

K. 

RAILINGS, 

the  duty  of  towns  to  erect,  26. 
the  test  of  the  necessity  of,  27. 

how  near  the  dangerous  spot  must  be  to  make,  neces- 
sary, 27. 

what  other  elements  are  to  be  considered,  27. 
erected  to  close  a  highway,  28. 
the  kind  of,  required,  29. 

pleading,  when  the  defect  relied  on  is  a  want  of,  30. 
RAILROAD, 

under  Public  Statutes,  ch.  112,  s.  212, 

meaning  of  phrase  "operating  a  railroad,"  88. 
meaning  of  "  while  engaged  in  its  business,"  89. 
passenger  upon,  90-94. 
under  Public  Statutes,  ch.  73,  s.  6, 

no  liability  upon  a  corporation  operating  a,  109. 
under  Acts,  1887,  ch.  270, 

what  constitutes  a,  within  clause  3,  171. 
as  to  the  motive  power,  171,  171,  n. 
(See  UPOX  A  RAILROAD.) 
RELEASE, 

railroads  cannot  secure,  from  liability  for  causing  death, 

83. 

by  employee  of  rights  given  by  Acts,  18S7,  121. 
REMEDIED.     (See  DISCOVERED  OR  REMEDIED.) 
REMEDY, 

absence  of  right  to,  defects  in  highway  a  defence,  19. 
plaintiff  must  show  that  town  might,  defects  in  high- 
way, 37. 
REPAIRS, 

effect  of  evidence  of,  made  in  highway  within  six  years,  35. 
towns  are  bound  to  make,  in  highway  as  located  only, 

32,  n.  2. 

extent  of  the  duty  of  the  town  to  make,  40. 
no  duty  to  make,  where  other  provision  therefor,  40. 


250  INDEX. 

[References  are  to  sections.] 

REPAIRS,  —  Continued. 

no  duty  to  make,  outside  their  territorial  limits,  40. 

bound  to  make,  so  as  to  meet  ordinary  exigencies  of 
travel,  40. 

duty  to  make,  not  affected  by  location  of  other  roads 
within  highway,  41. 

exceptions  to  that  rule,  41. 

the  duty  not  avoided  by  delegation,  42. 
RES  IPSA  LOQUITUR, 

application  of  maxim  under  Acts,  1887,  ch.  270,  174. 
RIGHT   OF   ACTION, 

when  complete,  under  Public  Statutes,  ch.  52,  53. 

in  whom  vested,  in  case  of  death  that  is  not  instantane- 
ous, 175. 

in  whom  vested,  in  case  of  instantaneous  death,  177. 
RUBBISH, 

as  a  defect  in  the  employer's  ways  or  works,  133. 

s. 

SAFETY   CONTRIVANCES, 

failure  to  furnish,  not  a  defect  in  ways,  works,  or  ma- 
chinery, 134. 
SCIENTER, 

need  not  be  alleged  or  proved,  70. 
SERVANTS   OR   AGENTS, 

the  gross  negligence  of,  85,  87. 

what  acts   of,   come  within  Public  Statutes,   ch.    112, 

s.  212,  89. 
SERVICE   OF   NOTICE, 

under  Public  Statutes,  ch.  52, 
by  whom  made,  58. 
upon  whom  made,  58. 
under  Acts,  1887,  ch.  270, 

how  may  be  made,  192. 
SHADE   TREES, 

as  defects  in  the  highway,  24,  n. 


INDEX.  251 

[References  are  to  sections.] 

SIGNAL,     SWITCH,     LOCOMOTIVE     ENGINE,     OR 
TRAIN, 

clause  3  applies  to  negligence  in  the  management  of  a, 

only  when  same  is  completed,  164,  169. 
what  constitutes  a  train,  170. 
the  legislative  definition  of  a  train,  170. 
person  in  control  of  switch,  not  in  charge  or  control  of 

train,  169,  n. 
SIGNALS  AT  GRADE  CROSSINGS, 

omission  of,  under  Public  Statutes,  ch.  112,  s.  212,  evi- 
dence of  negligence,  86,  102. 
omission  of,  under  Public  Statutes,  ch.  112,  s.  213,  fixes 

the  liability,  102,  105. 

the  common  law  liability  for  failure  to  give,  102,  n. 
evidence  of  the  omission  to  give,  106. 
value  of  that  evidence,  106. 

SIGNING  OF  NOTICE  OF   THE   ACCIDENT, 
'     under  Public  Statutes,  ch.  52,  57. 

under  Acts,  1887,  ch.  270,  194. 
SNOW   AND  ICE, 

constitutes  a  defect  in  highway,  when,  21. 
when  not  a  defect,  21. 
recent  legislation  as  to,  and  its  effect,  21. 
SOLE   OR   PRINCIPAL   DUTY, 

phrase  makes  provision  for  two  classes  of  cases,  159. 
meaning  of  words  "  principal  duty,"  159. 
superintendence  as  a  sole  duty,  160. 
effect  of  showing  that  superintendence   was  the   sole 

duty,  160. 

superintendence  as  a  principal  duty,  161. 
STAGE   COACHES, 

the  liability  of  proprietors  of,  103. 
STAGING, 

as  part  of  the  employer's  ways  or  works,  142. 
STATE   HIGHWAY, 

who  is  liable  for  defects  in,  30,  n.  4. 


252  INDEX. 

[References  are  to  sections.] 

STATUTORY   DUTY, 

employee  cannot  assume  the  risk  that  employer  will  fail 

to  perform,  123. 

STATUTORY  SIGNALS.   (See  SIGNALS  AT  GRADE  CROSS- 
INGS.) 
STEAMBOATS, 

the  liability  of  proprietors  of,  109. 
STREET   CAR.     (See  ELECTKIC  CAR.) 
STREET   RAILWAY, 

liability  of,  for  injuries  suffered  on  highway  during  con- 
struction, etc.,  41,  n.  5. 

company  operating  a,  not  liable  under  Public  Statutes, 
ch.  73,  s.  6,  109. 

Acts,  1886,  ch.  140,  creates  a  new  remedy  against,  110. 

construction  of  that  act,  111. 

the  question  of  the  due  care  of  the  deceased,  111. 

a  passenger  upon  a,  112. 
SUPERINTENDENCE, 

it  must  appear  that  foreman's  sole  or  principal  duty 
was,  159. 

as  a  sole  duty,  160. 

effect  of  showing,  to  be  the  sole  duty,  160. 

as  a  principal  duty,  161. 

meaning  of  the  words  "  principal  duty,"  159. 

whether,  the  principal  duty  a  question  of  fact,  161. 

the  act  complained  of  must  be  an  act  of,  161. 
SUPERINTENDENT, 

assumption  of  risk  of  the  negligence  of,  125. 

duty  of,  to  look  out  for  safety  of  employees,  129. 

of  what  negligence  of,  may  consist,  154. 

negligence  of,  need  not  be  sole  cause  of  the  injury,  155. 

definition  of  a,  156. 

must  have  superintendence  intrusted  to  him,  157. 

must  be  acting  within  scope  of  that  superintendence,  157. 

must  be  exercising  superintendence,  158. 

superintendence  must  be  his  sole  or  principal  duty,  159. 


INDEX.      .  253 

[References  are  to  sections.] 

SUPERINTENDENT,—  Continued. 

must  be  acting  as,  when  doing  the  negligent  act,  161. 
the  negligent  act  must  be  an  act  of  superintendence,  161. 
employer  net  liable  for  every  negligent  act  of  his,  162. 
not  liable  for  his  failure  to  inspect  exploders,  162. 
nor  for  his  failure  to  give  warning  of  passing  dangers, 

162. 
but  if  the  duty  of,  to  give  warning,  employer  liable  if  he 

omits  to  give  it,  162. 
SWITCH.    (See  SIGNAL,  SWITCH,  LOCOMOTIVE  ENGINE.  OK 

TRAIN.) 

T. 

TELEGRAPH   COMPANIES, 

the  liability  of,  201. 
TEMPORARY  DEFECTS, 

employer  not  bound  to  guard  against,  149,  162. 

not  defects  in  employer's  ways,  works,  or  machinery, 

132. 
TEMPORARY   STRUCTURES, 

as  a  part  of  the  employer's  ways  or  works,  142. 
TENDER, 

under  Public  Statutes,  ch.  52,  s.  22, 

meaning  of  word  as  used  in  the  section,  61. 
effect  of  making,  61. 
TIME   OF   THE   ACCIDENT, 
under  Public  Statutes,  ch.  52, 
meaning  of  the  phrase,  5,  n. 
statement  of,  in  the  notice,  50. 
under  Acts,  1887,  ch.  270, 

statement  of,  in  the  notice,  189. 
TOWNS.     (See  MUNICIPAL  CORPORATIONS.) 
TRAIN, 

what  it  is  to  have  the  "  charge  or  control  "  of,  166. 
the  engineer  may  have  the  charge  or  control  of,  167. 
the  conductor  may  also  have  charge  or  control  of,  167. 


254  INDEX. 

[References  are  to  sections.] 

TRAIN,  —  Continued. 

person   in   charge  or  control  of,  need  not  be    actually 

upon,  168. 

what  constitutes  a,  170. 
the  legislative  definition  of,  170. 
an  electric  car  not  a, '171. 

clause  3  applies  to  negligence  in  the   management  of, 
only  when  completed,  164,  169. 

TRAVEL  ON  THE  HIGHWAY, 

whatever  renders  unsafe,  a  defect,  18. 
the  purpose  of,  immaterial,  12. 

TRAVELLED  PART  OF  HIGHWAY, 

towns  liable  only  for  defects  in,  20. 
exceptions  to  this  rule,  20. 
meaning  of  the  phrase,  20,  n. 

TRAVELLED  PLACE, 

what  is  a,  within  Public  Statutes,  ch.  112,  s.  212, 104,  n. 
TRAVELLER, 

plaintiff  must  be,  upon  the  highway  when  injured,  11. 
what  constitutes  a,  upon  the  highway,  11. 
whether  plaintiff  is,  a  question  for  the  jury,  11. 

TRESPASSER, 

under  Public  Statutes,  ch.  112,  s.  212, 
the  duty  owed  to,  99. 
no  recovery  for  the  death  of,  99. 
person  killed  at  crossing  over  way  not  duly  estab- 
lished, is  a,  99,  n.  2. 
under  Acts,  1886,  ch.  140, 

no  recovery  for  the  death  of,  113. 


u. 

UNSUITABLENESS, 

of  safe  appliances  as  defect  in   ways,  works,  or  ma- 
chinery, 136. 


INDEX.  255 

[References  are  to  sections.] 

"UPON  A  RAILROAD," 

construction  of  the  word  "  railroad,"  171. 
an  electric  car,  not  a  locomotive  engine  or  train,  171. 
the  locomotive  engine  or  train  must  be,  at  time  of  ac- 
cident, 172. 

V. 

VALUATION  OF  TOWNS, 

burden  of  showing,  to  lessen  damages  rests  on  town,  55. 
VARIANCE, 

between  cause  of  accident  as  stated   in   notice  and  as 

proved  at  trial,  52,  n.  4. 
between  declaration  and  proof  as  to  character  of  defect 

in  employer's  ways,  etc.,  138. 
VENUE, 

of  actions  against  towns  for  injuries  on  the  highway, 

68,  n.  4. 

changes  of,  68,  n.  4. 
VIOLATION  OF  LAW, 

effect  of,  under  Public  Statutes,  ch.  52,  8. 
effect  of,  under  Public  Statutes,  ch.  102,  s.  93,  71. 
evidence  of,  admissible  under  general  denial,  8. 
VOLENTI   NON   FIT  INJURIA, 

application  of   maxim  to  cases  under  Public  Statutes, 

ch.  52,  9. 
application  of  maxim  to  cases  under  Acts,  1887,  124, 125. 

W. 

WAIVER, 

by  town  of  insufficiency  of  notice  of  accident  not  pos- 
sible prior  to  1891,  49,  n.  5. 

by  employee  of  rights  given  by  Acts,  1887,  ch.  270,  121. 
WARNING, 

right  of  employee  to  rely  upon  superintendent  to  give, 
129. 


256  INDEX. 

[References  are  to  sections.] 
WARNING,  —  Continued. 

right  of  employee   to  rely  upon  condition  of  ways  or 

•works  to  give,  129. 
at  grade  crossing.     (See  SIGNALS.) 

WAYS,  WORKS,  OR  MACHINERY, 

assumption  of  risk  of  defects  in,  122. 

right  of   employee  to  rely  upon  something  in,  to  give 

warning,  129. 

common  law  duty  of  employers  to  furnish  safe,  130. 
defect  in,  must  be  pi'oximate  cause  of  injury,  131. 
what  defects  in,  come  within  Acts,  1887,  132. 
ordinarily  temporary  defects  in,  not  within  act,  132. 
extraneous  substances  as  defect  in,  133. 
failure  to  supply  safety  contrivances  as  defect  in,  134. 
negligent  use  of  safe  appliances  as  defect  in,  135. 
unsuitableness  of  safe  appliances  as  defect  in,  156. 
a  dangerous  method  of  carrying  on  business  as  defect 

in,  137. 

variance  in  proof  of  defect  in,  138. 
defect  "  in  the  condition  "  of,  139. 
paths  necessarily  used  as  a  part  of,  140. 
explosives  as  a  part  of,  141. 
partially  completed  structures  as  a  part  of,  142. 
temporary  structures  as  a  part  of,  142. 
connected  with  or  used  in  employer's  business,  143-145. 
premises  owned  by  third  parties  as  a  part  of,  143,  144. 
appliances  used  without  employer's  authority  as  part  of, 

143,  144. 

foreign  cars  as  a  part  of,  145. 
"  WHICH  AROSE  FROM," 
effect  of  the  provision,  146. 

WIDOW,   . 

entitled  to  amount  recovered  for  death  where  deceased 

not  instantly  killed,  175. 
right  of,  to  maintain  action  where  deceased  instantly 

killed,  177,  182. 


INDEX.  257 

[References  are  to  sections.] 

WIDOW,—  Continued. 

entitled  to  amount  recovered  where  death  instantaneous, 

177. 
must  show  that  deceased  was  in  exercise  of  due  care, 

178. 

how  this  burden  may  be  sustained,  178. 
must  show  that  deceased  was  instantly  killed,  179. 
or  died  without  conscious  suffering,  179. 
how  this  burden  may  be  sustained,  179. 


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